After almost one year of investigations, the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK) released its report on February 17. The Commission of Inquiry (COI) started the investigations in March 2013 under a mandate based on the Resolution A/HRC/RES/22/13 of the Human Rights Council (UNHRC).
The main goal of the COI was to visit DPRK in order to see in person the prisoners’ conditions in the kwalliso, the political prison camps, or labor camps but this was not possible due to the DPRK’s decision not to give the authorization needed to enter the country. However, it has been possible to identify the kwalliso established in the DPRK thanks to satellite images. These images, together with the analysis offered by Amnesty International, show how many prisoners will never see the world out of the camps again. This tragedy reminds us of the dreadful circumstances of the World War II.
Amnesty commissioned the images from DigitalGlobe, a commercial satellite imagery vendor. In their release, Amnesty claims that up to 200,000 prisoners, including children, are being held “in horrific conditions in six sprawling political prison camps.” (retrieved from CNN).
Without the authorization to conduct investigations within the territory of DPRK and access to official information, the COI pursued its mandate by conducting public hearings of first-hand testimonies in indifferent cities, especially in Asia.
Since the story of the former prisoner Kim Kwang-li has been reported widely by mass-media, I am going to analyze a possible involvement of the International Criminal Court (ICC) in this case. Indeed, the press release of the UNHRC concludes underlining that the COI, in its letter to Kim Jong-un (the supreme leader of DPRK) recommended a referral of the situation to the ICC in order to take measures for the crimes against humanity committed. In the letter, the Commissioners of the COI nominate Kim Jong-un himself among the possible accountables for the atrocities proven by several evidences.
But there is a huge obstacle to the intervention of the ICC: the Democratic People’s Republic of Korea neither ratified nor signed the Rome Statute, the Statute of the ICC.
Articles 12 and 13 of the Rome Statues specify in which cases the ICC can exercise its jurisdiction:
- “The State on the territory of which the conduct in question occurred” is a Party to the Rome Statute (Articles 12 Paragraph 2(a));
- “The State of which the person accused of the crime is a national” is a Party to the Rome Statute (Articles 12 Paragraph 2(b));
- a State which is not Party to the Rome Statute “accept the exercise of jurisdiction by the Court with respect to the crime in question” (Article 12 Paragraph 3);
- when “one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council” (Article 13 Paragraph b).
We can already say that the preconditions 1 and 2 are not applicable to the case, since the DPRK is not a Party to the Rome Statute. We now have to verify if one of the other two preconditions can occur.
One of the possibilities to see an involvement of the ICC in the situation is that the DPRK will accept the jurisdiction of the Court on the crimes against humanity perpetuated in the kwanliso, as demonstrated by the COI on Human Rights in DPRK. The Commissioners could recommend a referral to the ICC made by Kim Jong-un in person, but we should not forget that he is the same person who threatened to use nuclear energy to bomb the Republic of Korea in March 2013. In his two years of leadership Kim Jong-un has not proven himself to be a particularly reasonable person, which is why I highly doubt he is going to turn himself over to the ICC.
The only possibility left is the intervention of the UN Security Council. On the base of Article 13(b) of the Rome Statute, the Security Council can report one or more crimes under the jurisdiction ratione materiae of the ICC (i.e. crime of genocide, crimes against humanity, crime of aggression and war crimes) on the legal base of Chapter VII of the Charter of the United Nations. Chapter VII rules upon “Action with respect to threats to the peace, breaches of the peace, and acts of aggression” and Article 39 states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security“.
The seriousness of the circumstances, together with the strong commitment of Navy Pillay, the current UN High Commissioner for Human Rights, leads us to think that in order to find a solution soon an intervention of the Security Council should take place as soon as possible. However, the position of the People’s Republic of China and its veto power are crucial for the matter. In fact, the People’s Republic of China has already supported DPRK in other occasions. Even if China showed an important change in its position during the crisis between DPRK and the Republic of Korea supporting the sanctions imposed by the UN, on the 18th February the Chinese Foreign Ministry Spokesperson Hua Chunying affirmed: “We believe that politicizing human rights issues is not conducive towards improving a country’s human rights. We believe that taking human rights issues to the international criminal court is not helpful to improving a country’s human rights situation”. After such a statement, it is evident that strong negotiations are needed within the Security Council in order to decide how to proceed.
We can state then that the chances to see a proceeding in front of the ICC in order to decide on the crimes against humanity in the kwanliso are very low.
Another possibility is the one presented in the report made by the Commissioners of an International ad Hoc Tribunal. However, this would be contrary to the idea of the creation of the ICC, namely to offer a unique orientation to international criminal law and ensure the possibility of a “pre-constituted” court. The “pre-constitution” of the court is a fundamental principle of national criminal law in the majority of the countries of the world and guarantees the respect of the rights of the individuals indicted. The ICC was established, among other reasons, to ensure the respect of this cardinal principle also in the field of international criminal law. Thus, supporting the creation of an International Tribunal ad hoc to further investigate on human rights violations in DPRK could be seen as a breakdown of the role of the ICC itself.
What, instead, would be more interesting to see in the future is an intervention of the ICJ in order to better define the situation. This would be possible thanks to the aut dedere aut judicare principle, also called “extradite or persecute”, that pressure a country to persecute an individual who committed gross human rights violations. If the country is not able or does not show the will to proceed, it has the legal obligation under public international law to extradite the person in charge so as to give the possibility to another country to start the trial. A famous example of the application of this principle is the Belgium v. Senegal ICJ case on the liability of Hissène Habré, the former leader of Chad from 1982 to 1990.
Will such a procedure be applied in the case of Kim Jong-un?