December 9, 2013

Seoul, Republic of Korea

 

Good afternoon, my name is Phil Robertson, and I’m the Deputy Director of the Asia Division at Human Rights Watch.  I oversee HRW’s work on North Korea. 

 

It’s a great pleasure and an honor to be here, and I want to thank the leaders and staff of the International Coalition to Stop Crimes against Humanity in North Korea (ICNK); the Yonsei University Graduate School of International Studies; the Sejong Institute; the Network for North Korean Democracy and Human Rights; and Open Radio for North Korea.  

 

I also want to especially recognize Eunkyoung Kwon, the indefatigable coordinator of the ICNK who has worked so hard to bring this conference together.  She does an incredible job with the ICNK and its partners, of whom Human Rights Watch is one, and we greatly appreciate her efforts.  

As I was looking at the agenda when it was sent to me, my first thought was that I received the easiest and the hardest assignment at the same time.  

The first part of my assignment is to talk about the “expected reaction of North Korea to the COI report.” 

 

I don’t think anyone needs to be an expert to predict that we will see a barrage of bluster, accusations and threats coming from Pyongyang in response to the COI’s report.  In fact, we already had a preview of Pyongyang’s like reaction during the COI’s public hearings conducted in Seoul in August.  At that time, KCNA attacked the hearings and called those testifying as “human scum” under the control of the South Korea government.

 

But the more tricky part is the second section of my assignment, where I’ve been asked to discuss “ways to impose COI recommendations on North Korea.” This is an altogether different challenge, which is to talk about a strategy to convince, cajole or enforce recommendations on a government that has been historically one of the most unpredictable and extreme governments in the modern, post-World War 2 era. 

 

Obviously, there are no magic answers to this question – but let me say as an aside that it is immensely gratifying from a human rights’ advocate’s perspective that we are even seriously asking this question now.  Looking back to September 2011, when the ICNK was first founded, it seemed it would take us a very long time before we got to the stage of an international tribunal on the verge of issuing serious recommendations and pressing the DPRK to respond.  We hoped it was possible, we planned to fight for it, but for so long North Korea human rights had been pushed off the table by security concerns, or economic engagement, or other agendas, that it was difficult to be optimistic.  So the lesson learned is keep pressing forward – and now that we have momentum, to keep pushing harder.  

 

Today we can say that “no longer” will rights be shunted aside from the international agenda. But let’s also be clear that we cannot rest, and that we are going to have to continue fighting to keep human rights at the center of the international community’s interaction with the DPRK government. 

It’s entirely possible that North Korea’s likely vehement reaction to the COI report, and possible petulant non-cooperation in other fields to show their anger, may strengthen the hands of those in the national security sectors who will argue that “rights are too sensitive to raise with Pyongyang, see how it makes them crazy” and tell us that we need to step back.  We need to be prepared to argue – particularly in countries like South Korea and Japan that are within easy striking distance by Pyongyang – that demanding accountability for rights will improve security considerations. 

 

An examination of the DPRK’s engagement with UN human rights mechanisms immediately reveals two things.  First, Pyongyang has continually denied the legitimacy of both the initial establishment and the operation of the UN Special Rapporteur on the situation of human rights in the DPRK.  The first SR, Vitit Muntarbhorn, and the current SR, Marzuki Darusman have repeatedly been denied to visit the country, and cannot even get a meeting with DPRK officials outside the country. Marzuki told me of the impossibility of even getting an email reply from the DPRK mission in Geneva. 

 

What has been consistent is Pyongyang’s continued official harsh denunciations alleging hostile political agendas, etc. in establishing the SR mechanism, and vows that it will never recognize the SR or his mandate from the Human Rights Council.

 

And it’s clear the COI has apparently been classified by Pyongyang the same way as the Special Rapporteur.  Repeated requests to visit the country, meet with officials, etc. fell on deaf ears in Pyongyang.

 

So if Pyongyang remains true to form, we should expect not only a denunciation of the COI’s findings but also an outright refusal to accept the legitimacy of the COI. And no compromise on that unless there are other developments that we can only engage in wishful thinking about. We should of course firmly demand they do recognize the COI and its findings, and take action in line with the COI’s recommendations, and pressure them to agree – but at the same time know that they likely will not do so. 

 

In fact, as I try and anticipate the DPRK government’s reaction, the major question I have is “how long and harsh will they denounce a commission who they don’t acknowledge should exist?”  Or asked another way, “at what point does Pyongyang’s outrage at the content of the recommendations give way to their policy that the COI establishment process was fatally flawed and therefore any results are illegitimate and can be ignored?”

 

However, I don’t expect that North Korea will cut off all cooperation with the UN human rights system.  This is because interestingly, Pyongyang still acknowledges and cooperates in some ways with other HRC Special Procedures -- at least in a formulaic way.  So if the Working Group on Arbitrary Detention send a communication to the North Korea Foreign Ministry, they will often get a reply – it may take a while, and it may contain an outright denial, but that’s no different from a lot of other governments around the world.  Other thematic SRs can also get responses.  Similarly, Pyongyang still does their periodic reporting before treaty bodies of at least some of the conventions they have ratified – like CEDAW and the CRC.

 

So one strategy is we should examine the COI findings and recommendations closely, and see where various sections fall within the mandates of thematic Special Rapporteurs – and launch a concerted effort to work with those SRs to formulate communications to the DPRK government that re-phrase the findings so that the DPRK might respond to their communications.  That’s probably the only way we’re going to get anything resembling an official communication back from Pyongyang about the substance of the COI’s findings.  

 

But more suasion and reporting are not going to “impose” anything on North Korea.  This is after all the government that defied Universal Periodic Review requirements to indicate which recommendations from other states parties it accepted.  It’s also the government that tried to withdraw from its ratification of the International Covenant on Civil and Political Rights in the mid-1990s, only to be informed by UN New York that there is no article in the treaty permitting a ratified state party to denounce the treaty. 

Implementing, imposing, or otherwise bringing into effect the recommendations of the COI will be exceedingly hard.  This will not be something that will be accomplished in a year or two, but rather will involve sustained campaigning for a number of years. 

 

COI chair Justice Michael Kirby set out the challenge when he expressed in his October 2013 oral statement that the “international community will be obliged to face its responsibilities and decide what concrete action it will take to protect the people of the Democratic People’s Republic of Korea from what appear to be grave and systematic human rights violations.”

 

What we hope and expect the COI will do is present a largely unassailable case of findings and recommendations that will compel the UN and its member states to confront the reality that crimes against humanity have happened in North Korea, and are continuing to occur.  This is a critical and important step, winning the ‘information war’ about what is actually happening in North Korea, where information is often so hard to come by.  Basically, the facts will no longer be in dispute – and human rights and accountability will become a core, central element of the international community’s engagement with North Korea.  We should push strongly for the UN Human Rights Council to publicly recognize the gravity of abuses occurring in North Korea, and label them appropriately as crimes against humanity in a resolution next March – and then ensure that the UN General Assembly follows with a strong resolution labeling ‘crimes against humanity’ in September/October 2014.  

 

This first step is really important, because implementing the recommendations will only be possible if those recommendations have widespread, demonstrated and continuous support in the international community.  Because the next steps after this will require advocacy and pressure, based the COI’s findings. 

 

Human Rights Watch believes that part of that ‘concrete action’ that Justice Kirby spoke of must involve accountability for these crimes.  What is most commonly spoken of is an investigation by the International Criminal Court (ICC), but the problem is North Korea is not a state party to the Rome Statute that established the ICC. 

So for a referral to the ICC to take place, North Korea would either have to ratify the Rome Statute – not likely – or accept the ad hoc jurisdiction of the ICC – again not likely.  A third path is through the UN Security Council, with the Council voting to refer the situation to the ICC – which is not impossible, it has happened – as in the case of Sudan in 2005.  But most observers believe that China in particularly, possibly joined by Russia, would use their veto as a permanent member of the Security Council to prevent it. 

 

But just because it is unlikely does not mean that we should avoid this fight.  North Korea is just the sort of case that should be at the ICC, since there are clearly “grave and systematic” human right violations that have been going on for a long time.  We would likely not win the first, or even the second time, but there is merit in forcing China to exercise its veto to protect such an unsavory ally – that will cost them in terms of international opinion – and in waging a high profile, public campaign that exposes North Korea’s horrendous human rights practices. 

 

There are other international justice mechanisms, such as ad hoc tribunals like those set up to prosecute crimes committed in Cambodia, Rwanda, Sierra Leone, and the former Yugoslavia – that could be considered if there is the political will in the international community to do so. But this would be as big or even a bigger a political feat to accomplish as an ICC referral.    

 

Another area for consideration could be greater use of economic sanctions against North Korea, to pressure for improved human right, taking this into the realm of coordinated bilateral actions.  This was quite effective in putting serious pressure on Burma during military rule, so it’s worth considering.

 

So far, sanctions have primarily focused on non-proliferation issues – especially nuclear proliferation and ballistic missile technology - for which North Korea has been a consistent concern at the UN Security Council, and subject to several UNSC resolutions, including resolution 2094, 2087, 1874, and 1718. These sanctions include:
an arms embargo; a nuclear, ballistic missiles and other weapons of mass destruction programs-related embargo; a ban on the export of luxury goods to the DPRK; individual targeted sanctions – namely, a travel ban and/or an assets freeze on designated persons and entities; a ban on the provision of financial services or the transfer of financial or other assets that could contribute to prohibited programs or activities, or to the evasion of sanctions.  But NOTHING on human rights.

 

So the question then – is there a possibility that similar sanctions could be applied against persons, entities, ministries, etc. in North Korea who are responsible for instances of serious human rights abuses? If the COI has uncovered evidence of crimes against humanity, this should be possible.  It would be even better if the COI actually identifies persons, entities, ministries, and sectors deemed to be implicated in abuses, or responsible for ensuring impunity for serious and on-going human rights crimes, and we should encourage them to do so. 

 

I understand that UN investigators working for the Syria COI submitted to the UN High Commissioner for Human Rights a sealed list of suspected criminal involved in war crimes and crimes against humanity in Syria. She is holding that list until there is a national or international prosecution that requests it – since Syria, like North Korea, is not a state party to the Rome Statute and has a protector – Russia – on the UN Security Council. 

 

If so, there could be a concerted campaign to impose the same kind of targeted punitive sanctions against individuals and entities that human rights groups, including Human Rights Watch, have advocated for in other similar situations, including travel bans, asset freezes and ban on financial transfers.  Similar approaches were taken regarding military-ruled Burma. 

 

Some are already thinking of this.  A draft law, HR 1771, the North Korea Sanctions Enforcement Act, has been introduced in the US Congress and currently has 128 co-sponsors from both Republicans and Democrats.  Ed Royce, a Republican from California, introduced the bill.  It has not been introduced in the Senate.

 

The draft law covers both non-proliferation and human rights issues, and provides for the US government to exercise sanctions against any person who “knowingly commits or facilitates a serious human rights abuse by the Government of North Korea.”

 

What does the term ‘‘serious human rights abuse’’ mean?  For the purposes of this law, it includes “genocide, slavery, kidnaping, peonage, murder, torture, and aggravated sexual abuse, as those terms are described and made punishable under part I of title 18, United States Code, when carried out by the Government of North Korea, without regard to whether such conduct is within the criminal jurisdiction of the United States.”

 

Sanctions could include travel bans, seizure of assets, and financial restrictions; including really strangling these persons or groups access to financial services.

 

Authorized to suspend if President decides, for up to 365 days, that DPRK has “taken significant steps toward accounting for and repatriating the citizens of other countries abducted by the Government of North Korea”, “accepted and begun to abide by internationally recognized standards for the distribution and monitoring of humanitarian aid;” or “taken significant and verified steps to improve living conditions in its political prison camps.”

 

So it’s not just the multi-lateral, UNSC approach to the ICC that is possible – but also an approach that considers creating an inter-locking set of bilateral sanctions against key persons in North Korea based on their violations of human rights – again, similar to what was successfully done by the international community in relation to military-ruled Burma.

 

In whatever we decide, this is not going to be easy going forward.  It’s going to be a long-term battle.  And we have to ensure that the evidence, the facts connected to the abuses occurring, are continually updated. 

 

Most immediately, these and other follow-up strategies will require political support and budgetary assistance to the Office of the High Commissioner for Human Rights to ensure they can continue to operate at a high level on North Korea rights matters.  While others have spoken about this, let me reiterate that HRW strongly believes that additional staff support and budgetary assistance should be provided to OHCHR to help manage the North Korea work going forward after the COI.  The need to continue to find and compile information on North Korea rights abuses does not diminish when the COI submits its report and leaves the scene. 

 

Thank you for your attention, and I look forward to answering your questions.