International Law

(c) United Nations / UN Refugee Agency / International Criminal Court

(c) United Nations / UN Refugee Agency / International Criminal Court

Contents
International Treaties and Associated Bodies: Understanding the Human Rights Violations Perpetrated in North Korea
The International Criminal Court: Understanding the Crimes Against Humanity Perpetrated in North Korea
China: The Refugee Convention and the Torture Convention
National Courts

“The international community faces no more critical issue currently than how to protect people caught in new and large-scale humanitarian crises — humanitarian intervention has been controversial both when it has happened, as in Kosovo, and when it has failed to happen, as in Rwanda. While there is general agreement internationally that we should not stand by in the face of massive violations of human rights, respect for the sovereign rights of states maintains a central place among the principles governing relations between states.” – International Commission on Intervention and State Sovereignty

“Sovereignty implies conducting an independent foreign and internal policy, building of schools, construction of roads…all types of activity directed towards the welfare of the people. Sovereignty cannot be conceived as the right to kill millions of innocent people.” – Raphael Lemkin, Activist, Scholar, and Coiner of the term “genocide”

INTERNATIONAL TREATIES AND ASSOCIATED BODIES: UNDERSTANDING THE HUMAN RIGHTS VIOLATIONS PERPETRATED IN NORTH KOREA. Kim Jong Il and the North Korean regime violate several basic human rights that are enshrined in several international treaties, and under customary international law (aspects of international law that derive from custom).  These human rights are listed in the tables and discussion below.

Under the International Covenant on Civil and Political Rights (ICCPR), the Universal Declaration of Human Rights (UDHR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), – to which North Korea is party – the North Korean regime continues to violate established human rights, including the right to life, the right to be free from torture, and the right to judicial guarantees.

(c) NKN

(c) NKN

Forced internment in the DPRK indisputably violates multiple human rights established by the ICCPR, the UDHR, and the ICESCR. Human rights violated in forced internment are either “peremptory norms” (jus cogens or a fundamental principle of international law) themselves or affect the protection of such peremptory norms, including the right to life and the right to be free from torture. Article 4 of the ICCPR allows for the derogation from certain human rights obligations during times of emergency. However, not only is Article 4 inapplicable to the case of North Korea because no such emergency exists, but the Human Rights Committee, Article 27(2) of the American Convention for Human Rights, the Inter-American Commission on Human Rights, the European Court of Human Rights, and the former Commission on Human Rights, have affirmed that judicial guarantees, because they protect non-derogeable rights to life and freedom from torture, cannot be derogated from in times of emergency. This consensus across international human rights bodies affirms the universal significance of the right to liberty and security, the right to a fair trial, and the right to humane treatment.

Starvation in North Korea, commissioned by the state, violates Article 11 of the ICESCR: the right to food.30 In 1999, the Committee on Economic, Social, and Cultural Rights (CESCR) institutionalized the link between the right to food and the inherent dignity of human persons, affirming that violations of the right to food occur when “a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger.”31 CESCR explicates that the inability or unwillingness of a State’s compliance determines which actions or omissions amount to commissions or violations of the right to food. When states point to resource constraints rather than state willingness, CESCR advances that “the State has to demonstrate that every effort has been made to use all the resources at its disposal in an effort to satisfy, as a matter of priority, those minimum obligations.”32

Kim Jong Il’s regime has violated the right to food by pro-actively and strategically barring its citizens from access to sustenance through its restrictive policies, ineffective distribution, diversion, hostile engagement with international aid organizations and the international community, and the failure to change domestic policies. In addition, violations of the right to food are inextricably linked to violations of the rights to health, livelihood, humane treatment, freedom from torture, and the ultimate right to life.
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THE INTERNATIONAL CRIMINAL COURT: UNDERSTANDING THE CRIMES AGAINST HUMANITY PERPETRATED IN NORTH KOREA. In addition to committing gross and systematic human rights violations that violate international law, Kim Jong Il and the North Korean regime additionally violate international law thorugh the commission of “crimes against humanity,” as defined by the International Criminal Court (ICC).

The ICC was established by the Rome Statute on July 1, 2002. The ICC is charged with the ability and responsibility to exercise jurisdiction over “persons for the most serious crimes of international concern,” including genocide, crimes against humanity, war crimes, and crimes of aggression.33 ICC jurisdiction may be exercised with the ratification of the Rome Statute, by declared state consent, or by Security Council referral.34 The DPRK has not ratified – and likely will not ratify – the Rome Statute; therefore, ICC jurisdiction may thus only be advanced with Security Council referral, pursuant to Chapter VII of the UN Charter, which affords the UN with the authority to act with respect to “threats to the peace, breaches of the peace, and acts of aggression.”35

United Nations Security Council Sanctions DPRK in 2009 (c) UN Photo/Eskinder Debebe.

United Nations Security Council Sanctions DPRK in 2009 (c) UN Photo/Eskinder Debebe.

Such Security Council referrals to the ICC Prosecutor instigate investigation without the guarantee of prosecution; this investigation itself would create great awareness regarding the human rights violations and crimes against humanity in the DPRK, while countering widely-held beliefs of sovereign impunity. Given the constitution of the Security Council and its “permanent five” members (China, France, Russia, UK, US), international law continues to face the impediments of state sovereignty and politics. A Security Council referral to the ICC for the investigation of crimes against humanity in North Korea will surely be determined by politics and ideology. That said, the ICC was established by nations-united to collectively uphold the UN Charter and to censure the most serious crimes of international concern with accountability rather than impunity.36

North Korea’s internment camps and continued starvation constitute crimes against humanity. Article 7 of the Rome Statute of the ICC states:

“’Crimes 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;
(f)  Torture;
(g)  Rape, sexual slavery, enforced prostitute, 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;
(i)  Enforced disappearance of persons;
(j)  Apartheid;
(k)  Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”37

Crimes against humanity are defined by four pillars. They must be: (1) widespread or systematic nature, (2) an attack, (3) directed at the civilian population, and (4) perpetrated with knowledge or intent.

North Korea’s internment camps constitute crimes against humanity.

  1. First, North Korea’s internment camps are widespread; they are part of the nation’s systematic machinery that demands civilian submission through state dominance, control, and terror.
  2. Second, ad hoc International Tribunals have affirmed that attacks constituting crimes against humanity are not “limited to the use of armed force” and may “also encompasses any mistreatment of the civilian population.”38 In the Akayesu case, the ICTR established that crimes against humanity may involve an attack that is “non-violent in nature, like imposing a system of apartheid…or exerting pressure on the population to act in a particular manner.39 That an attack can occur in peacetime or in armed conflict has also been affirmed by the ICTY in Prosecutor v. Tadic (1995).40
  3. Third, the camps are directed at the civilian population.
  4. Fourth, the knowledge and intent of the North Korean government is confirmed through the operation of the camps, the meticulous and rigorous surveillance implemented to identify defection, and the fact that the kwan-li-so are established to persecute any challenges to Kim Jong Il’s regime and to coerce a patriotic following. North Korea’s internment camps are part of Kim Jong Il’s agenda to silence dissent and annihilate dissenters in order to maintain power and regime survival.

As such, the violence, torture, and denial of human rights systematically perpetrated against civilians through the abduction, enforced labor, starvation, torture, and unlawful detention within North Korea’s kwan-li-so constitute crimes against humanity.

The starvation of the North Korean civilian population constitutes crimes against humanity according to Article 7 of the Rome Statute.41 David Marcus, famine expert, classifies four degrees of “faminogenic behavior,” arguing that first and second-degree levels constitute “crimes against humanity.”42 Marcus avows that North Korea’s “intentional infliction of famine” is a “first-degree famine crime” as Kim Jong Il’s regime “knowingly creates, inflicts, or prolongs conditions that result in or contribute to the starvation of a significant number of persons.”43 It may even be argued that mass-starvations constitute genocide in exterminating specific politically-dissenting groups or as war crimes in Kim Jong Il’s fight for state control and power. Referring to the Rome Statute, available facts affirm that the mass-starvation of the North Korean people constitutes murder, extermination, torture, and other inhumane and intentional acts that cause great suffering as outlined in 7(a), 7(b), 7(f), and 7(k) of the Statute.44

The four pillars confirming the perpetration of crimes against humanity through the mass-starvations of the North Korean people are fulfilled as:

  1. Mass-starvations are certainly both widespread and systematic;
  2. Such starvation can be classified as an attack as defined by ad hoc International Tribunals as it terrorizes, abuses, and exterminates the population;45
  3. Starvation is directed against the civilian population; and
  4. The systematic action and inaction of Kim Jong Il’s regime in denying the right to food and the right to life to its citizens was and is driven by a specific intent to control, exploit, and dominate the lives of North Koreans for national power and international collateral.
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CHINA: THE REFUGEE CONVENTION & THE TORTURE CONVENTION. China’s involvement in the North Korean human rights crisis repeatedly violates international treaty law and customary international law.  Specifically, China’s deportation of North Korean refugees – who consequently face internment camps or death upon re-entry into the DPRK– violates China’s obligations outlined in Article 33 and 35 of the United Nations Refugee Convention, Article 3 of the United Nations Convention on Torture (CAT), and the UN-China Agreement of 1995.46

(c) UN Photo/Marie Frechon

(c) UN Photo/Marie Frechon

The  United Nations Refugee Convention (ratified by China in 1982). China’s current policies toward North Korean refugees violates Article 33 and Article 35 of the United Nations Refugee Convention: the refoulement and non-cooperation clauses.47 Under the Refugee Convention, contracting states are mandated to cooperate with the UN Refugee Agency (UNHCR) – the international body entrusted to promote and supervise the application of the Refugee Convention – to fulfill the Convention’s obligations. In the UN-China Agreement of 1995, the Chinese government stated: “UNHCR personnel may at all times have unimpeded access to refugees and to the sites of UNHCR projects in order to monitor all phases of their implementation.”48 Despite this agreement, the Chinese government continues to deny UNHCR entry into northeast China, where North Koreans flee to China in search of food and safe haven.

Classifying North Korean refugees as “illegal economic migrants,” Chinese security forces patrol the DPRK-China border, routes to the UNHCR office in Beijing, and the gates of both the UNHCR office and several foreign consulates, effectively obstructing, arresting, and deporting North Korean refugees seeking asylum.49 However, under the Refugee Convention, a refugee as a person who:

“[O]wing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of their nationality, and is unable to or, owing to such fear, is unwilling to avail him/herself of the protection of that country.”50

Given the execution or indefinite imprisonment of deported North Koreans for “defection by flight” – notwithstanding the denial of food and of other basic human rights -, it is commonly respected and accepted that North Koreans who flee their homeland are well within the definition of refugee status and deserve international protections, support, and safe haven.

Additionally, reports indicate further abuses of North Korean refugees in the Jirin province, just north of the DPRK-China border. These violations include: the sex trafficking of women and children, forced labor, rape, unlawful detention and torture.51 Investigation of these crimes may create additional avenues for human rights protection.

The United Nations Convention Against Torture (CAT; ratified by China in 1988). China’s ratification of CAT in 1988 was predicated on two reservations that essentially evade commitments to cooperate with the Torture Committee and its confidential inquiry process, as well as with the International Court of Justice (ICJ) in settling interstate disputes regarding breaches of the obligations enshrined in CAT.52 Thus, at first glance, it appears that without China’s consent, CAT and the UN Committee Against Torture (the UN Committee that overseas the Torture Convention) are limited to reporting and calls to action against China’s other treaty violations. However, as the right to be free from torture is a peremptory norm – a fundamental principle of international law that is regarded by the international community as a basic norm -,53 violations of CAT may be initiated by states and addressed through national courts under universal jurisdiction as violations of the right to be free from torture are so serious they are considered crimes committed against all.
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NATIONAL COURTS.National courts have the potential to prosecute human rights violations committed by the DPRK through universal jurisdiction or through jurisdiction established in a nation’s constitution or statute. The United States, for example, may initiate such a prosecution through the Alien Tort Claims Act (ATCA), which was enacted by US Congress in 1789 and allows foreign citizens to sue individuals through the US judiciary for injuries in violation of international law. In Filartiga v. Pena-Irala (1980), the US Court of Appeals determined that a Paraguayan police officer could be sued in US courts for claims of torture and murder. Additionally, the Commission for Human Rights in North Korea (HRNK) and Skadden LLP, an international law firm, propose that some national courts are empowered to file lawsuits for human rights violations perpetrated in another country.

The second primary way that national courts can gain jurisdiction to prosecute human rights violations perpetrated in other countries is through universal jurisidction when such violations constitute “international crimes” or grave crimes of a universal or jus cogens nature that create an obligation “erga omnes” (in relation to everyone). Crimes against humanity, torture, and genocide may thus be prosecuted as the offenders of such crimes are “common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution.” Demonstrated by the prosecution of Chilean dictator Augusto Pinochet Ugarte by the House of Lords in 1999 for widespread and systematic crimes including mass-murder, torture, kidnapping, illegal detention, and press censorship, prosecution through universal jurisdiction counter sovereign impunity for heinous crimes.
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30 ICESCR, Article 11.
31 “General Comment No. 12: The Right to Adequate Food.” Committee on Economic, Social and Cultural Rights (CESCR): May 1999. E/C/12/1999/5. Para. 4 [General Comment No. 12, CESCR].
32 Ibid.
33 Rome Statute, Article 1, 5.
34 Rome Statute, Article 12, 13; International Criminal Court (Website). “Jurisdiction and Admissibility.” Retrieved on June 16, 2008 from URL: http://www2.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.
35 UN Charter, Chapter VII.
36 Rome Statute, Preamble.
37 Rome Statute of the International Criminal Court. July 17, 1998. Entered into force on July 1, 2002. Article 7 [Rome Statute].
38 Hawk, David. Concentrations of Inhumanity. Washington DC: Freedom House, 2007. 31 [Hawk, Concentrations of Inhumanity, 2007].
Prosecutor v. Mitar Vasiljevic. Case IT-98-32-T: ICTY, November 2002. Para. 29 and 30 [Prosecutor v. Mitar Vasiljevic].
39 Hawk, Concentrations of Inhumanity, 2007, 31.
Prosecutor v. Akayesu. Case ICTR-96-4-T: ICTR, September 1998. Para. 581 [Prosecutor v. Akayesu].
40 Prosecutor v. Tadic (Dule Case), IT-94-1, Decision, International Criminal Tribunal for the Former Yugoslavia, October 2, 1995.
Schabas, William A. The UN International Criminal Tribunals. Cambridge, UK: Cambridge University Press, 2006.
41 Rome Statute, Article 7.
42 Marcus, David. “Famine Crimes in International Law.” The American Journal of International Law. American Society of International Law, April, 2003.
43 Marcus, 2003, 4, 18.
44 Rome Statute, Article 7.
45 Prosecutor v. Akayesu, para. 581.
46 United Nations Convention relating to the Status of Refugees. Entered into force on April 22, 1954 [Refugee Convention]; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Entered into force on June 26, 1987 [CAT].
47 Refugee Convention, Article 33, 35, Reservations.
48 United States Congress. “North Korean Refugees in China: Congressional-Executive Commission on China: 2005 Annual Report.” Washington DC: Congressional Executive Commission on China, 2005. Retrieved on March 14, 2008 from URL: http://www.cecc.gov/pages/annualRpt/annualRpt05/2005_7_refugees.php.
49 Yanji, Donald Macintyre. “Nowhere to Run, Nowhere to Hide.” Time Magazine: June 18, 2001 [Yanji, 2001].
50 United Nations Convention relating to the Status of Refugees. Entered into force on April 22, 1954 [Refugee Convention].
51 Ibid.
52 CAT, Ratifications, Reservations.
53 R v. Evans and others (Ex Parte Pinochet Ugarte) and R v. Bartle and others (Ex Parte Pinochet Ugarte), (1999) House of Lords No. 3 6BHRC24 at 16 [Ex Parte Pinochet].
General Comment No. 24, HRC, UN HCHROR, 52nd Session, UN Doc. CCPR/C/21/Rev.1/Add.13. 2004 (on the Nature of the General Legal Obligations on State Parties to the Covenant) [HRC, General Comment No. 24].
CAT, Article 5. Damrosch, Lori Fisler, Louis Henkin, Richard Crawford Pugh, Oscar Schachter, and Hans Smit. International Law: Cases and Materials (4th Ed). St. Paul, MN: West Group, 2001. 46 [Damrosch, 2001].