Beyond the Security Council: Keeping Focus on North Korean Human Rights

Introduction

On November 18, 2014, the Third Committee of the United Nations General Assembly (UNGA) adopted a strongly worded resolution condemning the human rights situation in the Democratic People’s Republic of Korea (DPRK) including encouragement to the Security Council that it consider referring the country to the International Criminal Court (ICC).[1] In the preceding months, Pyongyang carried out a furious charm offensive that included participation in the UN General Assembly by its Foreign Minister,[2] visits by high-level officials to South Korea and Europe,[3] first-ever talks with the Special Rapporteur on the situation of human rights in the DPRK, and the release of three imprisoned Americans. This outreach dissipated as the resolution’s sponsors—Japan and the European Union (EU)—refused to remove references to ICC referral in its text.[4] The DPRK responded to the resolution’s adoption by threatening to resume nuclear testing.[5]

Later this month, the UNGA plenary will vote on the resolution. While it remains to be seen how the Security Council will handle the submission of the report of the Commission of Inquiry on human rights in the DPRK (COI) and the recommendation for ICC referral, international concern over the human rights situation in the DPRK will not disappear anytime soon. The COI’s report concludes that human rights violations in the DPRK constitute crimes against humanity.[6] The Human Rights Council (HRC) will continue to address the situation in the DPRK as long as it remains on “Agenda Item 4”—human rights situations that require the attention of the Council. Thus, in March 2015, the Special Rapporteur will present his report in Geneva, and the HRC will consider another resolution on the DPRK. The UNGA will then take up the matter in New York again several months later.

Possible Paths Forward

The COI provided a long list of recommendations addressed not only to the DPRK but also to neighboring states and the international community. While the DPRK has clearly signaled it is not ready to address violations stemming from its vast prison camp system or to undertake profound political and institutional reforms, other recommendations may have more chance of gaining acceptance in Pyongyang. Three initiatives recommended by the COI in particular should receive immediate and serious consideration by all concerned parties.

1. Restart the EU-DPRK Human Rights Dialogue

Although the COI’s report did not explicitly reference the EU-DPRK Human Rights Dialogue, it did urge the formation of a human rights contact group by states with historically friendly relations with the DPRK to raise concerns about the its human rights situation and to provide support for initiatives to improve the situation. The DPRK itself raised the possibility of restarting the dialogue during the visit of Secretary and Director of the Worker’s Party of Korea’s International Affairs Department Kang Sok Ju to Europe in September.[10] Although the DPRK no longer appears to be pursuing the resumption of formal dialogue, there is speculation that the EU Special Representative for Human Rights Stavros Lambrinidis may still visit Pyongyang.[11] If so, discussion on reviving the EU-DPRK dialogue remains worthwhile as it could be a productive format for both sides to discuss practical steps towards implementing changes needed to improve human rights in the DPRK.

The first EU-DPRK Human Rights Dialogue took place in Brussels in June 2001 between EU officials and representatives from the DPRK Ministry of Foreign Affairs. A second round of talks appears to have been held in June 2002. In 2003, the DPRK cancelled further dialogue after the EU sponsored a resolution at the Commission on Human Rights (CHR), the predecessor to the current HRC. Details about these talks are scarce, but the EU at that time characterized them as “[they] do not yet match” in quality and substance the EU’s dialogue with China; considering the generally grim view of the EU-China dialogue even back then, this was a bleak assessment.[12] Despite these lackluster outcomes, the resumption of formal talks could present an opportunity to improve human rights in the DPRK if the DPRK acts with some degree of good faith from recognition of the need to meet international standards in human rights, even if this derives from political calculations to improve its integration with the international economy.

Indeed, there are important lessons to be learned by the EU from its experience with China. When the People’s Republic of China initiated a series of bilateral human rights dialogues with several states and the EU in 1995,[13] Beijing was motivated to end EU sponsorship of resolutions in the CHR condemning its human rights violations in the wake of events in Tiananmen Square six years earlier as well as to lift the EU’s arms embargo from that period. Formal dialogues continue to this day, but they have faded in relevance for various reasons. At this point, the DPRK is in a somewhat analogous situation, facing disagreeable resolutions in the UN as well as ongoing international sanctions. In addition to the Security Council’s sanctions on potential ballistic weapons and nuclear material and luxury goods, the EU maintains its own additional sanctions on the DPRK.[14]

In 2012, the EU Foreign Ministers established a new strategic framework on human rights and democracy pledging the EU to “place human rights at the center of its relations with all third countries including strategic partners.”[15] Many critics argue that the EU engagement with China has not adhered to this principle, and civil society has levelled severe criticism at how the EU has conducted its dialogues.[16]

Nevertheless, China did make concessions in its efforts to derail CHR resolutions: these included the release of some political prisoners; granting the International Committee of the Red Cross (ICRC) access to prisons; hosting visits by the High Commissioner for Human Rights, the Working Group on Arbitrary Detention, and the Special Rapporteurs on education and on torture; and promises to sign and ratify the two main international human rights covenants.[17] However, the threat of CHR resolutions ended in 2005 as the Commission was set to be replaced in the next year by the HRC.[18] Thus, China no longer saw need for the dialogues, but other parties continued to want them.[19] Consequently, Chinese cooperation diminished to the point in 2013 when Beijing’s representatives refused to accept lists of prisoners of concern, which had been a staple of the dialogues.[20]

Several initial recommendations based on these experiences for a renewed EU-DPRK dialogue are:

• The EU-DPRK dialogue should be explicitly linked to benchmarks, some of which could (and should) be facilitated through follow-up technical assistance projects.
• The EU-DPRK dialogue should be kept in context as one channel among others for engagement on human rights issues, and progress (or setbacks) made in any of these channels should be readily shared to inform others.[21] The Bern Process was an effort to share information among stakeholders involved in improving human rights in China, although the Chinese Government objected strongly to these meetings. The EU-DPRK dialogue should complement other existing or potential channels including the Special Rapporteur, Treaty Bodies, thematic Special Procedures mandates,[22] and the Office of the High Commissioner for Human Rights (OHCHR). Bilateral negotiations by Japan on abductees, and North-South contacts should also factor in.[23]
  1. For example, the inspection of political prison camps and ultimately their closure would be a priority benchmark but one unlikely to be agreed upon by the DPRK given its on-going reluctance to acknowledge the existence of the camps. Intermediary steps—and benchmarks—for achieving this objective could involve a series of recurring and expanding international inspections of various levels of prisons and detention centers. The EU might try to convince the DPRK that inspections of places of detention by international monitors are widely accepted by most states, perhaps through highlighting the Council of Europe’s regular visits to places of detention in all 47 member states,[24] or the ICRC’s detention activities in over 97 countries in 2012.[25] The EU would have to emphasize that any prison visits would need to be conducted by professionally trained and accredited monitors working with international standards.[26]
  2. Another benchmark could be the DPRK’s response to the equivalent of the prisoners’ lists that were, until recently, a prominent element of human rights dialogues with China. Specific information on a select short list of individuals, who might include abductees and other persons of concern, could be requested by the EU.[27] Credible information on these persons would provide some relief to long-suffering family members, help to build trust, and open the way for further measures of remedy.
  3. Relaxation of restrictions on the freedoms of movement and expression to allow more family reunifications could be another benchmark, which could pave the way for Koreans who have been separated to permanently reunify with family members. Given DPRK claims that citizens enjoy the full complement of human rights, there should be room to negotiate a means for these elderly Koreans to travel to the South or to a third country.
  4. The development and implementation of a multi-tiered training program to address sexual and gender-based violence by state agents, the establishment of a microfinance program for women traders and other innovations could comprise further benchmarks.
• The EU has adopted the “silent diplomacy” approach to China since moving from sponsoring CHR resolutions to conducting twice-a-year human rights dialogues on the assumption that longer-term engagement leads to gradual change.[28] While critics question whether this approach was appropriate for China,[29] it would certainly not be suitable for the DPRK given urgent issues that need immediate redress. In this regard, parallel tracks of engagement with the DPRK that includes continuation of EU co-sponsorship of UN resolutions would retain public pressure in the EU’s toolkit while still conducting the types of dialogues noted above.
• Transparency is key. The diplomatic nature of formal dialogues has bolstered arguments for confidentiality, but the EU’s experience with China has shown that a lack of transparency jeopardizes trust with other stakeholders and contributes to the lack of efficacy of the dialogues. Starting and closing the dialogues with a press conference, even when a joint press release is not possible, would enable both sides to share topics and the general outcome of discussions with the public. The EU-China dialogue provided an opportunity for academic seminars to be held in conjunction with formal talks, a practice that could be included in the EU-DPRK dialogue. However, Track II type events cannot substitute for inclusion of relevant stakeholders in the dialogue process itself.
• A considerable body of literature on the EU and bilateral human rights dialogues with China provides guidance on how to technically improve on those experiences; this should be given due attention. For example, participation by appropriate officials would be important to the possible success of any dialogue. Major criticism of the human rights dialogues with China has included the diminution of the seniority of officials participating in the dialogues from the Chinese side and the rapid turnover of interlocutors on the European side. The appropriateness of officials should be considered not only from the perspective of seniority, but also for their links to relevant departments—not just from the Ministry of Foreign Affairs or similar party body.[30]

2. Move Forward with a Special Rapporteur Visit

The mandate of the Special Rapporteur on the situation of human rights in the DPRK was first established in 2004 in the CHR and renewed on an annual basis by the HRC.[31] The DPRK has rejected this country-specific mandate and refused to cooperate with the Special Rapporteur. (In fact, there are currently 13 other country-specific mandates, including two in Asia—Myanmar and Cambodia, both of which do offer cooperation to their mandates.)

During the Special Rapporteur’s talks with North Korean officials in October, the first time in ten years, the DPRK proposed a possible visit on the condition that language on ICC referral be removed from the UNGA resolution,[32] although the Special Rapporteur would have explained that he does not play any formal role in formulation of the text nor advocate for its adoption. The current mandate-holder, Marzuki Darusman, the former Attorney General of Indonesia, holds a nuanced and respectful attitude towards the DPRK and presents a genuine opportunity for constructive engagement. Moreover, Special Procedures country visits are ultimately diplomatic affairs governed by rules of protocol that ensure an amount of control by the host. Dialogue would be an incremental affair from one visit to the next, providing incentives to both sides to find common ground to demonstrate some modicum of progress.

Since the Special Rapporteur reports to the UN twice a year—normally in March to the Human Rights Council and in October to the General Assembly—if Pyongyang were to accept such a visit, it would present an unparalleled opportunity for the DPRK to convey new messages to the international community within an existing institutional framework, a more effective forum than launching its own report to counter the COI.

3. Begin Technical Cooperation with OHCHR

North Korean officials reportedly expressed some interest in technical cooperation with OHCHR during its latest UPR in April. (DPRK officials have long sought to link such cooperation to ending its annual resolution in the HRC, but offers of technical assistance have been repeated by the High Commissioners.) Technical cooperation could offer actual benefits to the DPRK as well as provide another signal to the international community of its willingness to address human rights concerns.

In 2000, China began a comprehensive technical cooperation program with OHCHR under a Memorandum of Understanding that covered broad areas including human rights education, criminal procedure law reform, improving prison conditions, and ending torture during police interrogation. This program was renewed in 2006 and ended only in 2008. China consistently cited this technical cooperation as evidence of its efforts to address these issues when criticized for its record on human rights. There are serious lessons to be learned from this experience, some of which are outlined in evaluations that were done in 2005 and 2009.[33] OHCHR should closely review this experience to apply relevant lessons to cooperation activity with the DPRK.

How plans to establish a small office in the ROK in 2015 to follow up on the work of the COI might facilitate technical cooperation remains unclear given the DPRK’s vehement objection to its establishment.[34] Possible areas for technical cooperation include regional approaches to reforming the death penalty,[35] development of a human rights education program, and even the high-level political conference recommended by the COI.

Conclusion

Despite the DPRK’s current disengagement, the prospect of an ICC referral appears to have touched a nerve. Allegations of crimes against humanity do not stop at one individual but implicate a cadre of leadership surrounding the current and previous supreme leaders. In raising the spectre of international criminal law, which implicates individuals rather than institutions, the COI has certainly triggered a new focus on this issue inside the North Korean leadership. While it is up to the DPRK to realize the gravity of international concern over its human rights situation, the international community should be prepared to offer solid options for engagement that will preserve the North’s sovereignty while addressing this unacceptable situation. Restarting the EU-DPRK Human Rights Dialogue, beginning engagement with the Special Rapporteur and commencing technical cooperation with OHCHR are three possible steps forward that could lead to positive outcomes if relevant parties undertake necessary planning and apply lessons learned.

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[1] The resolution on the Situation of human rights in the Democratic People’s Republic of Korea (A/C.3/69/L.28/Rev.1) was passed with 111 ‘yes’ votes, 19 ‘no’ votes and 55 abstentions. In paragraph 8, the General Assembly “Decides to submit the report of the commission of inquiry to the Security Council, and encourages the Council to consider the relevant conclusions and recommendations of the commission and take appropriate action to ensure accountability, including through consideration of referral of the situation in the Democratic People’s Republic of Korea to the International Criminal Court and consideration of the scope for effective targeted sanctions against those who appear to be most responsible for acts that the commission has said may constitute crimes against humanity.”

[2] Foreign Minister Ri Su Yong marked the first time in 15 years that the DPRK’s foreign minister participated in the UNGA.

[3] The unannounced attendance by a high-level delegation of the Asian Games closing ceremonies in Incheon included a declaration of the DPRK’s readiness to resume high-level inter-Korean dialogue. The delegation included Hwang Pyong So, director of the Korean People’s Army General Political Bureau, currently ranked as number two in the rigidly hierarchical state. The visit did not prevent the exchange of fire across the land and sea borders between the two Koreas shortly afterwards.

[4] According to DPRK Ambassador Jang Il Hun, who participated in a discussion with members of the Council on Foreign Relations in New York: “And during the current session of the UN General Assembly, they planned to present resolution again accusing my country of serious human rights violations….the resolution may be passed at the UN General Assembly. All we ask is we—we do not want the resolution to include any mention of the referral of the leadership of a country to the international criminal justice mechanism or bringing those responsible—most responsible to the justice—it’s simple.” Transcript, “A Conversation With Jang Il Hun,” Council on Foreign Relations, New York, October 20, 2014.

[5] BBC, “North Korea responds to UN with nuclear test threat,” November 20, 2014.

[6] Commission of Inquiry on human rights in the Democratic People’s Republic of Korea (COI), Report of the detailed findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, February 7, 2014, A/HRC/25/CRP.1, Para. 21-27.

[7] KCNA, “Detailed Report on Secret Anti-DPRK ‘Human Rights Resolution’ Released,” November 28, 2014.

[8] The Universal Periodic Review (UPR) is one of the hallmark innovations of the Human Rights Council that replaced the Commission on Human Rights in 2006. The UPR was intended to address some of the criticisms of the former body Commission on Human Rights—that it was of polarized by politicization—by establishing an intergovernmental process of peer review that all Member States would be equally subject to in a four year cycle. The efficacy of the UPR is subject to considerable debate.

[9] The COI noted the DPRK has ratified the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), but “[s]ince 2009, the DPRK has not submitted any state reports on the foregoing treaties, although in 2004, the DPRK did take the positive step of inviting a delegation of the Committee on the Rights of the Child to visit the country.” A/HRC/25/CRP.1, Para 9. The DPRK has signed but not yet ratified the International Convention on the Rights of Persons with Disabilities (CRPD) and Optional Protocol to the Convention on the Rights of the Child (CRC OPSC).

[10] On his visit to Switzerland, Belgium, Germany and Italy, Kang Sok Ju was able to meet with foreign affairs officials only in Bern. In Brussels, Kang met with the European External Action Service and EU Special Representative for Human Rights Stavros Lambrinidis, with whom he appears to have discussed the DPRK’s proposal to resume the EU-DPRK human rights dialogue. A few weeks later, DPRK Ambassador to the United Kingdom Hak Bong Hyon is reported to have met with Member of the European Parliament Nirj Deva, Chairman designate of the European Parliament’s Delegation to the Korean Peninsula, to discuss further the re-starting of dialogue. “Welcome for renewed North Korean human-rights dialogue with EU,” EU Reporter Correspondent, October 4, 2014.

[11] Yi Whan-hoo, “EU willing to dispatch human rights envoy to NK,” The Korea Times, November 26, 2014.

[12] Axel Berkofsky, “EU’s policy towards the DPRK-Engagement or Standstill?” 2003, European Institute for Asian Studies.

[13] These have included the United States, United Kingdom, Japan, Australia, Canada, Germany, Switzerland, Norway and Hungary.

[14] EU autonomous sanctions include the ban on the export and import of key components for ballistic missiles with the DPRK, such as certain types of aluminium used in ballistic missile-related systems; prohibition of the trade in new public bonds from the DPRK; outlawing of trade in gold, precious metals and diamonds with North Korean public bodies; ending the delivery of new DPRK denominated banknotes and coinage to the central bank of the DPRK; and prohibition of new North Korean banks branches in the EU and joint ventures with European financial institutions.

[15] Council of the European Union, “EU Strategic Framework and Action Plan on Human Rights and Democracy,” Luxembourg, June 25, 2012.

[16] For example, Human Rights Watch in 2013 commented that “the EU accepts progressively more restrictive conditions for even holding the dialogue,” while in refusing to set public benchmarks it has “allowed the mere holding of the dialogues to become a deliverable unto themselves.” Human Rights Watch, “EU/China: Overhaul Human Rights Dialogues,” June 24, 2013.

[17] China signed ICCPR in 1998 although it has not yet ratified it; it signed in 1997 and ratified in 2001 ICESCR. Sonya Sceats with Shaun Breslin, “China and the International Human Rights System,” Chatham House, 2012.

[18] China was heavily invested in the “institution-building” negotiations for this new body with the main thrust of its efforts to replace “finger-pointing” with “dialogue and cooperation.” Although China was unable to prevent country resolutions in the new HRC, nor was it able to set the requirements for support from one-third of the body’s membership for such a resolution to be tabled and from two-thirds for adoption, China did secure language to ensure “the broadest possible support for their initiatives (preferably 15 members)” for states proposing country resolutions.

[19] In Charles Burton’s report on the Canada-China human rights dialogue, he explains: “From the Chinese perspective the dialogue process is intended to allow Canada to demonstrate to Canadian NGOs, and Canadians in general concerned about China’s human rights record, that Canada is actively pursuing the matter with the Chinese authorities. So the Chinese MFA sees the dialogue as responsive to Canadian domestic political demands.” Charles Burton and Associates, “Assessment of the Canada-China Bilateral Human Rights Dialogue,” April 19, 2006.

[20] These were carefully constructed lists with names of emblematic cases of political prisoners or prisoners of conscience for whom the dialogue partners sought information in a process that they hoped would lead to their eventual release.

[21] Roberta Cohen suggested that the High Commissioner for Human Rights should be a focal point for engagement with the DPRK. “A Human Rights Dialogue with North Korea: Real or Illusory?” 38 North, October 16, 2014.

[22] In addition to the Special Rapporteur on the situation of human rights in the DPRK, requests to visit the DPRK were made by the Special Rapporteurs on the freedom of religion or belief, on freedom of expression and opinion, and on the right to food. According to the website of the Office of the High Commissioner for Human Rights, out of the 193 UN Member States, 166 States (85.5%) have accepted requests for country visits and have been visited by at least one of the Special Procedures mandate-holders. As of December 3, 2014, a total of 27 States (14.5%) have never received or accepted any request for a visit by one or more of the special procedures mandate-holders, including the DPRK. However, the COI noted that the DPRK had invited the Special Rapporteur on violence against women, its causes and consequences to visit in 1995 (A/HRC/25/CRP.1, Para. 11).

[23] A high-level Japanese delegation began talks in October in Pyongyang on Japanese citizens who were abducted by North Korea in the 1970s and ’80s. Under the May accord, North Korea agreed to conduct a comprehensive survey of all Japanese in the country, including those it abducted in the 1970s and 1980s, in return for the lifting of some of Japan’s unilateral sanctions which Tokyo did in July. This is the first time that Japanese government officials have held formal talks with the Ministry of State Security. “Japan’s North Korea delegation urges swift action on abductees probe,” Kyodo, October 28, 2014.

[24] Through the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the Council carries out inspection visits to all member states usually once every four years with additional ad hoc visits as necessary. In 2014, these included Finland, Austria, Macedonia, Ireland, Ukraine, Romania, Spain, Armenia, Czech Republic, Bulgaria, Albania and Denmark. Even the United States has allowed inspections by the Inter-American Commission on Human Rights which has visited places of detention in most of its member states. In Africa, the African Commission on Human and Peoples’ Rights appointed a Special Rapporteur on Prisons and Conditions of Detention in Africa in order to assess the general conditions of detention and the treatment of detainees, and has made visits to over 20 states.

[25] ICRC delegates conducted over 5,000 visits to around 1,750 places of detention reaching more than half a million people deprived of their liberty. ICRC, “Protecting Detainees,” 01-07-2013 Feature.

[26] For example, the Standard Minimum Rules for the Treatment of Prisoners, Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977. The ICRC carries out a visit only after certain guarantees: it must be able to go to all places where persons covered by its mandate are held; it must be able to meet them and talk to them without witnesses; and it must be able to repeat these visits as often as it wishes.

[27] While Japan has requested such information on its nationals, there remain many other disappeared persons from the ROK, Thailand and other countries who remain unaccounted for. See the section on “Enforced disappearance of persons from other countries, including through abduction” in the COI’s report (A/HRC/25/CRP.1, Para. 846-1021).

[28] According to the European Institute for Asian Studies, “Differing from the European Parliament, other European institutions prefer to keep the official EU-China Human Rights Dialogue as low key, discreet and as non-confrontational as possible. This approach—known as ‘silent diplomacy’ and first promoted by Germany—was adopted between 1993 and 1994. This approach maintains that by helping China develop and by further integrating it into the international community through trade, this will eventually lead to the introduction of more democracy and freedoms in the country, including human rights. The EU-China meeting on human rights and democracy is therefore regarded as a long-term dialogue, from which immediate results cannot be expected.” “Briefing on EU-China Cooperation on Human Rights and Democracy,” June 11, 2013.

[29] The European Parliament in 2013 said that it “[c]onsiders regrettable, as regards the EU-China Human Rights Dialogue, the continuing lack of any substantial progress and the failure to produce concrete and visible results.” European Parliament resolution of 14 March 2013 on EU-China relations.

[30] In the case of China, Charles Burton explained: “The Chinese MFA’s mandate is to defend China’s interests abroad. It has no institutional interest in promoting respect for China’s human rights domestically. The Chinese MFA does not consult with them [those officials working domestically on these issues] about what agenda items would be most useful to them in their ongoing work. The Chinese MFA simply advises them of the topics and asks that they research the Canadian situation in these areas and prepare questions and observations about Canadian human rights shortcomings.” Charles Burton and Associates, “Assessment of the Canada-China Bilateral Human Rights Dialogue,” April 19, 2006.

[31] The first mandate-holder was Vitit Muntarbhorn of Thailand.

[32] Kyodo, “North Korea wants key parts of U.N. human rights resolution dropped,” Japan Times, October 29, 2014.

[33] These are not public documents but were shared with the Ministry of Foreign Affairs of China and were circulated within a restricted circle.

[34] HC Finney, “North Korea threatens to ‘mercilessly punish’ those involved in U.N. human rights office,” United Press International, June 9, 2014.

[35] In Northeast Asia, only Mongolia has ratified Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, while the Republic of Korea has maintained a de facto moratorium. Japan continues its practice of executions with minimal notice to death row inmates and their families, while China’s execution rate remains a state secret though experts estimate that China still executed over 2,400 people last year, more than the rest of the world combined.