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Crimes against humanity have been described as crimes which “shock the conscience of mankind”. They are “international” crimes. They are different from so-called “ordinary” crimes because they require proof of a context: they must be part of a widespread or systematic attack directed against a civilian population.

International criminal law imposes criminal responsibility upon individuals who have committed international crimes, including crimes against humanity; and upon those who have planned, ordered, instigated, enabled, or failed to prevent or punish their commission.

International criminal law is enforced through international criminal courts or tribunals, and in national courts. Enforcement requires political will on the part of States: States may sign up to the relevant international treaties, for eg, the Rome Statute of the International Criminal Court (as in Kenya, Uganda, DRC); States may allow the prosecution of international crimes in their domestic criminal codes (as in the UK); States may agree to set up a hybrid international criminal tribunal (as in the Special Court for Sierra Leone); and the Security Council may refer a “situation” to the ICC (as in Darfur or Libya), or set up an international criminal tribunal (as in the ICTY and ICTR), as it is empowered to do.

Crimes against humanity defined

Crimes against humanity involve the commission of certain inhumane acts, such as murder, torture, rape, in a certain context: they must be part of a widespread or systematic attack directed against any civilian population.

Crimes against humanity include the following acts: murder, extermination, forcible transfer, enslavement (including forced labour), imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape or other forms of sexual violence, persecution on political, racial, national, ethnic, cultural, religious, gender, or other grounds, enforced disappearance.

Crimes against humanity in North Korea

There is at least a prima facie case for stating that the system of repression of political prisoners and their families in the kwanliso of North Korea involves the commission of crimes against humanity. This system involves the targeting of a civilian population through the commission of acts which are prohibited under international law, including arbitrary imprisonment, murder, torture, forced labour, rape. It is also persecutory in nature. The targeting of civilians in this way constitutes an “attack” which is both widespread – because it involves many many victims – and systematic - because it involves organised action on the part of state agencies.

Purpose and Advantages of a Commission of Inquiry

A CoI could investigate the commission of crimes against humanity in North Korea. It could also investigate (other) serious violations of international human rights law. It could include recommendations for international criminal justice. It could identify state agencies and individuals most responsible for the commission of crimes. It could make other recommendations: a truth and reconciliation commission, reparations for victims, institutional reform.

A CoI would not be without its challenges. A CoI that is not backed by the UN Security Council is unlikely to secure access to North Korea. The recommendations of a CoI that is not backed by the UN Security Council are unlikely to be enforceable.

But there is much work that a CoI can do. There is much available evidence outside North Korea. A CoI will involve evidence-gathering by independent and impartial experts, but it will need the support of the community of NGOs and other actors working within the context of North Korea. A CoI can be the beginnings of a process. It will provide a forum for the truth to be told; and it can be a first step towards justice and accountability for crimes against humanity in North Korea.