Presentation of of Jared Genser

Managing Director, Perseus Strategies
Former Counsel, International Coalition to Stop Crimes Against Humanity in North Korea

 

December 9, 2013

 

 Thank you to the organizers of this important conference – including the ICNK, Yonsei University Graduate School of International Studies, and the Sejong Institute.  I greatly appreciated the invitation to appear before you as someone who has worked to advance the applicability of international law to the situation in the DRPK for more than seven years now and who previously served as pro bono counsel to the Coalition to Stop Crimes Against Humanity in North Korea, which advocated for the creation the DPRK Commission of Inquiry.

 

 In my brief time before you today, I want to speak about the framework within which I believe the Commission of Inquiry will present its analysis – the responsibility to protect and the ongoing commission of crimes against humanity in North Korea.  I will then speak about what I believe the Commission may recommend as well as my own views as to how it can be most effective.

 

The human-rights situation in North Korea is inextricably bound up with the question of Responsibility to Protect Doctrine, which is arguably the most significant development in the defense and promotion of international human rights law since the 1948 Universal Declaration of Human Rights. Indeed, this Doctrine authorizes international action to “protect a state’s population from genocide, war crimes, crimes against humanity and ethnic cleansing” where that state is either unable or unwilling to protect its own citizens – or worse – is the author of such mass atrocity crimes as in the case of North Korea. In particular, this is a landmark normative principle that is focused on saving lives. Indeed, where a State perpetrates such grave crimes as in the case of North Korea – and continues to do so with impunity – the very fabric of the international legal system for the protection of human rights is at grave risk.

 

In 2005 at the UN World Summit, the UN General Assembly adopted the responsibility to protect. In further description of its meaning, the Secretary General described RtoP as being comprised of three pillars:

First, the notion of sovereignty as responsibility – the State’s own responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing – and their incitement; Second, the international community’s responsibility to encourage and assist States in fulfilling this responsibility; and third, the international community’s responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes where a state manifestly fails to protect its own populations.

 

Beyond, this, while the DPRK has ratification a broad range of international human-rights treaties – including the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Rights of the Child; and the Convention on the Elimination of All Forms of Discrimination Against Women – it is in standing violation of all of them.

 

Simply put, not only has the North Korean government failed to meet its own responsibility to protect its own citizens from mass atrocities, it has indeed perpetrated – and continues to perpetrate – crimes against humanity against its own people – and this on a mass scale.

 

Accordingly, the international community has the responsibility under international law to protect the North Korean people from such widespread and systematic crimes against humanity perpetrated by their own government. The evidence is as clear as it is compelling that the North Korean regime – under Kim Il-sung, his son Kim-Jong Il, and his son Kim Jong-Un – has institutionalized – as a matter of government policy – the crimes of – among others – murder, torture, rape, persecution based on political and other prohibited grounds, and the arbitrary and enforced detention and disappearance of civilians based on alleged subversive thoughts or actions without any semblance of due process of law.

 

Indeed, in the use of these legal terms we run the risk of almost sanitizing or banalizing the true horror of the reality in North Korea. We cannot forget that behind each and all of these acts there are victims – people who have a name and a face – and who suffer daily at the hands of the regime. I know all of us have been moved, even to tears, hearing the stories of these brave and courageous individuals who have come forward to shed light on the abuses in North Korea, and it is my hope that one day all such stories can and will be told so that history and humanity may bear witness.

 

Given what we know about human rights in North Korea, the question is: How should the international community respond? First, it is imperative that we acknowledge where the international community has been derelict – our failure to protect thus far. Frankly, it is shameful that we continue to let the situation in North Korea continue – and that we, and here I speak of the international community, often let the nuclear question – albeit important – overshadow the decision-making process on the pressing human rights concerns that must be addressed.

 

In that regard, I wanted to cite to my friend and mentor Irwin Cotler, a former Minister of Justice & Attorney General of Canada, who describes RtoP as being organized around five principles: namely, the Responsibility to Remember – the bearing of witness; the Responsibility to Prevent these atrocities to begin with; the Responsibility to Protect against such mass atrocities; the Responsibility to Prosecute by bringing perpetrators to justice; and the Responsibility to Rebuild.

 

Tragically, we are well past the point of preventing crimes against humanity in North Korea, which remain ongoing, widespread, and systematic. As I mentioned, we know that crimes against humanity in North Korea are institutionalized as a matter of government policy – the intent being to control, subdue, and massively repress the population. Given limited time, I would refer the audience to Failure to Protect, the report that I prepared for former Czech Republic President Vaclav Havel, Nobel Peace Prize Laureate Elie Wiesel, and Former Norwegian Prime Minister Kjell Magne Bondevik and the Committee for Human Rights in North Korea back in 2006, which details in some 140 pages and 1,000 footnotes the applicability of the responsibility to protect and crimes against humanity framework to the situation in the DPRK.

 

But in summary, the crimes against humanity perpetrated by the regime include:

• The government’s food policy – which has intentionally deprived millions of its citizens adequate nourishment while rewarding social classes favoured by the regime – and has thereby starved well over a million people to death;
• The operation of Kwan-li-so which are used by the regime to achieve the enforced disappearance, imprisonment, enslavement, torture, and persecution based on political and religious grounds of North Koreans deemed undesirable by the elite.

 

The work the Commission has done through its public hearings held here and around the world have been extraordinarily important and illuminating, not merely for its efforts to gather and analyze evidence, but in raising awareness about the horrors of modern life in North Korea.  That said, I still believe as I did when the Commission began its important work is that the overwhelming weight of the evidence will lead the Commission to conclude that the DPRK has committed and is committing crimes against humanity directed at its own people.

 

Thus, in my remaining time, I’d like to turn to what recommendations it may consider making in light of its investigation.  In my view, the Commission is likely to begin by briefing noting the importance of the development of the responsibility to protect and its conclusion, which I expect will be presented with extensive evidence, that the Government of North Korea has committed and is committing crimes against humanity against its own people.  Having reached this critical conclusion, the Commission will then have to present its recommendations to the international community and to the DPRK itself.

 

First, it is my view that the Commission will reaffirm the observations of both Vitit Muntharbhorn and Marzuki Darusman, the former and of course current Special Rapporteur, that enormity of the challenge requires engaging the totality of the UN system to address the situation in North Korea.  Thus, I very much hope its recommendations will particularly emphasize the critical role of the UN Security Council, which in my view must begin by placing the DPRK human-rights situation on its permanent agenda, but also the important role for greater involvement by specialized UN agencies such as the World Food Programme, UNICEF, World Health Organization, and others.  I don’t expect the Commission to request the Security Council to refer the situation in the DPRK to the International Criminal Court.  I know this is a hotly debated topic, but I suspect it will want to be very careful prejudging what actions the Council might take once it places the issue on its permanent agenda.  That said, it will also crucial to emphasize the role of individual countries to act on their own, not merely in concert with the United Nations, is equally essential.  As an illustration, the failure of UN agencies to secure the budgets they require from country pledges to support operations in North Korea is unsustainable.  And, of course, the Commission will also need to speak to what the DPRK itself must do to change course immediately.

 

Second, in relation to the depth of its recommendations, the Commission has been given a very wide terms of reference by the Human Rights Council.  As a result, there are many topical areas that need to be covered.  But given limited space in its report, however, I would urge the Commission to synthesize, summarize, and analyze the evidence you have gathered and related violations of law in a highly-condensed format and spend as much time as possible in your report making specific and actionable recommendations across the terms of its mandate.  In my experience, Commissions of Inquiry tend to do the opposite – feeling compelling to spend enormous time on what they learned and what it means.  It isn’t that such work isn’t important – but rather that what I have heard over and over from governments around the world how little they felt could be done to address the situation in the DPRK.

 

Lastly, there is the question of the sustainability of the Commission’s recommendations in fostering ongoing efforts. In my view, it is crucial that the Commission report provide a road map for action and engagement by the international community that makes clear that the Commission’s report is not an end, but rather a beginning, of a much higher level of engagement by the international community.  Thus, I very much hope the Commission will urge the Security Council to place the situation in the DPRK on its permanent agenda, providing a call to action that can be taken up by ICNK and various governments.  I hope the Commission will recommend the creation of an official and permanent repository for information gathered from the Commission and create an ongoing relationship between the Office of the High Commissioner for Human Rights and an academic institution here in Seoul to not only preserve the records but raise additional funding and continue to gather and preserve evidence and testimonials.  And I hope that the Commission will create a follow up procedure to ensure that its recommendations are periodically revisited through the Human Rights Council and beyond. 

 

In short, coming out of the Commission of Inquiry, it must be understood by the DPRK that the only way to ameliorate international concern is exclusively by engaging fully with the international community in a broad range of ways that begins by acknowleding and not denying the issues and ultimately results in a substantial change in how the DPRK deals with its own people.

 

It is my hope and expectation that the Commission’s report next February will spur the necessary action required to move North Korean human rights to the forefront of the international agenda. The time for RtoP has more than come with respect to North Korea, and we must not miss the opportunity of the Commission’s work in spurring serious, sustainable, and effective action to end the suffering of the North Korea people.