Michael Kirby is something of a celebrity in the legal world (look him up on google for proof!) and the lecture theatre was suitably packed on Thursday evening. Kirby was at times sombre, at times high-spirited as he explained to the audience how the Commission of Inquiry went about its work. Kirby emphasised that the Commission took a risk in taking a markedly different approach to other UN inquiries, yet this approach has now been hailed as a success and a hallmark for the future.
Michael Kirby with the report of the Commission of Inquiry.
The difference, said Kirby, was the assiduous focus on transparency throughout the inquiry process. Barred from entering the DPRK to interview citizens, the inquiry instead set up public hearings in Tokyo, Seoul, London and Washington DC where it heard witness testimonies from individuals who had fled North Korea. The 80+ public hearings were, clearly, public, meaning that interested individuals and media personnel could drop in to observe the process. The recorded testimonies and their transcripts can be accessed on the internet. (There are also 240+ confidential interviews by witnesses who were fearful of revealing their identities, and there were 80 public submissions by states and international organisations.) The report is available on the internet and Kirby spent many hours reading over the text to ensure the writing style was crisp and accessible. The full report is just under 400 pages in length, peppered with witness testimony; there is also a 36 page summary including appended letters sent to the governments of China and North Korea. The DPRK was encouraged to defend its case to ensure the state had a "fair right of reply," however, it refused to co-operate through the process and rejected the whole inquiry. A letter was sent to the office of Kim Jong-Un but no reply was received.
Kirby explained that the focus on transparency was influenced by the common law. The civil code, Kirby explained (meaning the legal system which arose from Napoleonic France and is now followed by many states around the world) is "efficient verging towards being authoritarian and secretive," whereas the common law system (emanating from England and followed in New Zealand and Australia among others) is "more transparent, flexible and accessible." In the tradition of the common law, the Commission maintained as much transparency as possible, without putting witnesses at risk. (Kirby stated that he has not heard of witnesses suffering as a consequence of speaking out, but I note that the Commission attests to having paid "particular attention" to victim protection whilst denying full responsibility for any problems and insisting that nation states have the key role in protecting witnesses.) The emphasis on transparency was all the more important given that the North Korean regime is clearly not transparent: the inquiry further demonstrates the gap between North Korea and the rest of the world (common law or not!)
A public hearing showing a witness testifying to the three appointed commissioners: Marzurki Darusman, Michael Kirby and Sonja Biserko.
So what does the report cover?
To provide a little background - the Commission was established via a UN Security Council resolution (22/13) in March 2013. Its mandate by the Human Rights Council was to "investigate systematic, widespread and grave violations of human rights in the DPRK" and there were nine specific areas of focus (like discrimination and torture.) Special attention was given to gender-based violence. It was noted that the DPRK is party to a number of international human rights agreements including the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights.
The report speaks for yourself if you read it. There is no doubt about it that there are reasonable grounds to suspect organs of the state (e.g. State Security Department, Korean People's Army) of committing crimes against humanity, including: extermination, murder, enslavement, torture, imprisonment, rape... and the list goes on. These are no "mere excesses of the state" but they are "essential components of [the] political system." The DPRK is a state "that does not have any parallel in the contemporary world." This is a totalitarian state characterised by an "isolationist" mindset and ruled by a "personality cult" which is described by the state as "Kimilsungism-Kimjongilism."
The report describes the regime as a totalitarian personality cult.
Some of the charges against the regime include an "almost complete denial" of the right to freedom of expression. For instance, (this info comes from the BBC) all North Koreans bar some elites cannot access the internet. They can only access a government controlled "Red Star" intranet which includes the "Voice of Korea" news service in which Kim Jong-Un's name always appears larger than the surrounding text. Citizens are indoctrinated to love Kim Jong-Un and the Korean Worker's Party (the sole political party) and to hate the US, Japan and South Korea. People are rewarded for dobbing in fellow citizens for committing "anti-state crimes" such as speaking out against the regime. Telephone calls are monitored - although people are increasingly smuggling Chinese cellphones into the country and going to great lengths to make calls undetected.
Discrimination persists through the songbun class system which dictates where people live, how much education they receive and even how much food they are given. Women are vulnerable to gender-based discrimination and invasive body searches. Funds are lavished on the elite class and the military at the same time as whole segments of the population starve. 27% of babies are born stunted. Humanitarian aid agencies have been denied access to the country, as have human rights monitors. There are an estimated 80,000 - 120,ooo political prisoners detained in four kwanliso camps. (The DPRK denies the existence of these camps, yet they can be clearly seen through satellite imagery.) Inmates are tortured and forced abortions and infanticide are routinely practised.
Some individuals presented sketches as evidence for the inquiry. This one documents conditions in political prison camps, where inmates eat snakes and rats to survive.
The report clearly points the finger at Kim Jong-Un, the Worker's Party and the organs of government, yet it goes further in stressing the culpability of other nations in bringing about this horrific situation. It notes that the situation has been influenced by the Japanese occupation, the Korean War, the Cold War and the division of the Korean peninsula. The "great powers" in particular are called on to face up to their "unfortunate legacies."
The report recommends a number of actions. The DPRK must undertake political reforms, it must allow aid agencies access to the country, it must amend its criminal code and acknowledge its ongoing human rights violations. Other states, in particular China, must respect the international principle (under refugee law) of non-refoulement and must not force North Korean refugees to return to the DPRK. The international community must take action: the Security Council should refer the situation to the International Criminal Court for investigation of crimes against humanity. Sanctions must be increased; they should be targeted not against the general population, but very specifically against the perpetrators of alleged crimes against humanity. The General Assembly and Human Rights Council must step up their monitoring of the state's human rights situation.
Images like these make one think of rallies in Nazi Germany.
After speaking to Victoria University students, Michael Kirby was due to meet with staff at the Ministry of Foreign Affairs and Trade. He wants the New Zealand government to keep "alert" and to back up the Commission's report. This will take courage from the government, as New Zealand must risk incurring the wrath of the major trading partner China, yet Kirby stressed this is what we are called to do as a current member of the Security Council - a body tasked with protecting international peace and security.
The situation in North Korea is truly shocking. I don't think further evidence is needed to confirm that action is sorely needed - unless contrary information suddenly and miraculously comes to light. What is needed is rigorous analysis so that we can understand the impacts of different courses of action. It would be tragic if the Security Council took action (unlikely at this point though the situation may change) only to worsen the situation - with the populace suffering from sanctions and the Korean army cracking down more heavily on dissent. The Commission of Inquiry's report provides the international community with a call to action and now the matter is up for debate as to how best to act, without causing unintended side effects, in the interests of justice.