31/70 Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea
Document Type: Final Report
Date: 2016 Jan
Session: 31st Regular Session (2016 Feb)
Agenda Item:
Human Rights Council Thirty-first session
Agenda item 4
Human rights situations that require the Council’s attention
Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea
Note by the Secretariat
The present report, submitted to the Human Rights Council pursuant to Council
resolution 28/22, is the last to be submitted by the current mandate holder.
Two years have passed since the commission of inquiry on the situation of human
rights in the Democratic People’s Republic of Korea presented to the Human Rights
Council its finding that crimes against humanities had been and were being committed in
the country. Regrettably, the situation of human rights in the Democratic People’s Republic
of Korea has not improved, and the crimes against humanity documented by the
commission of inquiry appear to continue. Nonetheless, the situation in the Korean
peninsula appears to be improving, as seen in the increasing dialogue and interactions
between the Democratic People’s Republic of Korea and the Republic of Korea. Public
discussions on the future of the Korean peninsula seem more visible, at least in the
Republic of Korea. In this regard, the Special Rapporteur stresses that a framework on
accountability measures for crimes against humanity and other human rights violations
must be a component of discussions on the future of the Korean peninsula, including a
unification scenario.
I. Introduction
1. Two years have passed since the commission of inquiry on the situation of human
rights in the Democratic People’s Republic of Korea presented to the Human Rights
Council its finding that crimes against humanities had been and were being committed in
the country (see A/HRC/25/63). Regrettably, the situation of human rights has not
improved, and the crimes against humanity documented by the commission appear to
continue. Nonetheless, the situation in the Korean peninsula appears to be improving, as
seen in the increasing dialogue and number of interactions between the Democratic
People’s Republic of Korea and the Republic of Korea. Public discussions on the future of
the Korean peninsula today are more visible, at least in the Republic of Korea.
2. In the present report, the Special Rapporteur describes how accountability for crimes
against humanity should be ensured. Given the serious nature of these crimes, he urges the
international community to take bold steps to address them while recalling its duty to
prosecute such international crimes. In this way, the Special Rapporteur hopes that concrete
steps aimed at achieving accountability for crimes against humanity committed in the
Democratic People’s Republic of Korea will be taken.
II. Latest developments
3. Since the previous report of the Special Rapporteur submitted to the Human Rights
Council in March 2015 (A/HRC/28/71), there have been several important developments
pertaining to the situation of human rights in the Democratic People’s Republic of Korea.
A. Engagement with the international community
4. In the second of half of 2015, the Democratic People’s Republic of Korea again
showed willingness to engage with the international community on human rights, probably
spurred by the upcoming debate in the General Assembly on the situation of human rights
in the country.
5. In September 2015, the Government of the Democratic People’s Republic of Korea
invited the United Nations High Commissioner for Human Rights to visit the country and
expressed its interest in continuing discussions on possible forms of technical assistance by
the Office of the High Commissioner (OHCHR). In June 2015, a delegation of the
European Union visited the country to hold a political dialogue with the authorities,
including on improving the protection of human rights. In October, the Democratic
People’s Republic of Korea repatriated a national of the Republic of Korea and also
permanent resident in the United States of America who had been detained since unlawfully
entering the Democratic People’s Republic of Korea in April 2015. During 2015, the
Democratic People’s Republic of Korea repatriated at least three more individuals to the
Republic of Korea.
6. On 21 September 2015, the Special Rapporteur participated in a panel discussion on
the situation of human rights in the Democratic People’s Republic of Korea held during the
thirtieth session of the Human Rights Council. The discussion, which was moderated by the
former chairperson of the commission of inquiry, touched upon the issues of international
abductions, enforced disappearances and related matters. The Democratic People’s
Republic of Korea, however, rejected the panel discussion, describing it as a politically
motivated attempt to change the socialist system of the country.
7. On 17 December 2015, the General Assembly adopted resolution 70/172 on the
situation of human rights in the Democratic People’s Republic of Korea (119 Member
States voted in favour, 19 against and 48 abstained). Like in its resolution 69/188, the
Assembly called upon the Security Council to consider referring the situation of human
rights in the country to the International Criminal Court.
8. On 10 December 2015, the High Commissioner addressed the Security Council, and
briefed it on the situation of human rights in the Democratic People’s Republic of Korea.
B. Developments in neighbouring countries
1. Republic of Korea
9. On 4 August 2015, a landmine explosion severely injured two soldiers of the
Republic of Korea in the demilitarized zone, leading to weeks of tension between the
Democratic People’s Republic of Korea and the Republic of Korea. On 25 August 2015,
the two countries reached an agreement, which contained several points, including on the
holding of talks between authorities to improve bilateral relations, resuming the reunion of
families separated as a result of the Korean War, and strengthening exchanges of non-
governmental organizations in various fields. On the basis of the agreement, a reunion
involving 186 separated families was organized from 20 to 26 October 2015 in the
Democratic People’s Republic of Korea. Furthermore, on 11 December, a vice-ministerial
talk was held between the two countries at the Kaesong industrial complex. The Special
Rapporteur welcomes that meeting, which followed a number of interactions between the
two countries, and hopes that such meetings will lead to increased opportunities for
engagement. In this regard, he also appreciates the significant role played by civil society
groups on the ground.
10. Since his previous report, the Special Rapporteur has paid two visits to the Republic
of Korea: from 6 to 10 September 2015, at the invitation of the Government, and from 23 to
27 November 2015. During the two visits, he met with senior officials from the Ministry of
Foreign Affairs, the Ministry of Justice, the Ministry of Unification and the National
Intelligence Service. He also met with representatives of the National Human Rights
Commission of Korea, the Korea Institute for National Unification, the Korean Institute for
Criminology, the Judicial Policy Research Institute of Korea and the Korean Bar
Association, parliamentarians, members of non-governmental organizations, persons who
left the Democratic People’s Republic of Korea, young people and members of the
diplomatic community.
11. During his visit in September 2015, the Special Rapporteur noted the improvement
in relations between the two States following the agreement of 25 August, and welcomed
the intra-Korean dialogue and people-to-people contacts. He also noted an increase in
public discussions in the Republic of Korea relating to the possibility of unification. Such
discussions make the work on accountability more urgent. The Special Rapporteur stresses
that a framework on accountability measures for crimes against humanity and other human
rights violations must be a component of discussions on the future of the Korean peninsula,
including the scenario of unification.
12. Consequently, during his visit in November 2015, the Special Rapporteur further
explored possible accountability measures, including through meetings with stakeholders
relevant to the judiciary in the Republic of Korea. Throughout his visit, the Special
Rapporteur stressed that the time had come to move forward on accountability measures.
The Special Rapporteur also held talks relating to transitional justice with stakeholders in
the Republic of Korea, and stressed that discussion need to be further developed to adopt a
transitional justice process that reflects the unique situation of the Korean peninsula, while
ensuring accountability as required under international law.
13. During his visit, the Special Rapporteur also met with a member of a family
separated as a result of the Korean War. While welcoming the reunion of family members
in October 2015, the Special Rapporteur is seriously concerned that many family members
have reached an advanced age; the issue therefore requires urgent and practical solutions
shaped with the participation of these victims. In this regard, the separation of families
should not be seen as a humanitarian issue, but recognized as a human rights violation that
continues to affect families in the two States at multiple levels.
14. The Special Rapporteur expresses his appreciation for the support received from the
Republic of Korea throughout his mandate.
2. Japan
15. The Special Rapporteur visited Japan from 18 to 22 January 2016. During his visit,
he met with the Minister for Abduction Issues and Minister of Foreign Affairs, senior
officials from the Ministry of Foreign Affairs, Ministry of Justice, the National Police
Agency, the Cabinet Intelligence Office, the Supreme Court and the Association of
Families of Victims Kidnapped by North Korea. He also met with members of the
Association of Families of Abductees and other representatives of civil society and
journalists.
3. China
16. In October 2015, on the margins of the session of the Third Committee of the
General Assembly, the Special Rapporteur met with officials from China to discuss the
situation of human rights in the Democratic People’s Republic of Korea. The formation of a
contact group of countries with close, friendly diplomatic relations with the Democratic
People’s Republic of Korea was also discussed. The Special Rapporteur reiterated his
concern that the forcible repatriation faced by nationals of the Democratic People’s
Republic of Korea, who in their attempt to leave the country crossed the border to China,
was in breach of provisions of international law on non-refoulement. The Special
Rapporteur notes the critical role that China plays in bringing concrete and meaningful
changes to the situation of human rights in the Democratic People’s Republic of Korea, and
hopes that the next mandate holder will continue the constructive dialogue that he has had
with the Government of China.
C. Efforts by the Office of the High Commissioner
1. Establishment of a field-based structure
17. On 23 June 2015, OHCHR opened its field-based structure in Seoul pursuant to
Human Rights Council resolution 25/25. The Office is tasked with strengthening,
monitoring and documenting the situation of human rights in the Democratic People’s
Republic of Korea, improving the engagement and capacity-building of stakeholders and
maintaining the visibility of the situation. During the visits conducted by the Special
Rapporteur to the Republic of Korea in September and November 2015, he had fruitful
discussion with the staff members of the Office, which is now fully operational. The
Special Rapporteur welcomes the establishment of this office and hopes that it will build
upon and expand the work undertaken by the commission of inquiry and maintain an
effective partnership with the next mandate holder.
18. During his visits to the Republic of Korea and Japan, the Special Rapporteur was
pleased to observe that officials and civil society actors in both countries were eager to
support and cooperate with OHCHR. He reiterates his calls upon all stakeholders, including
the Government of the Democratic People’s Republic of Korea, to extend their full
cooperation to OHCHR. In addition, he urges the Human Rights Council to ensure that the
OHCHR field-based presence in Seoul can fulfil all aspects of its mandate effectively,
including by ensuring that it is provided with adequate financial resources.
2. Dialogue on technical cooperation with the Government of the Democratic People’s
Republic of Korea
19. In September 2015, during the meeting between the High Commissioner and the
Minister for Foreign Affairs of the Democratic People’s Republic of Korea, the Minister
invited the High Commissioner to pay a visit to the country. Subsequent discussions were
held between the Government and OHCHR on a possible visit. The Special Rapporteur
welcomes this positive development, and hopes that the visit be used as an opportunity to
improve cooperation between the Government of the Democratic People’s Republic of
Korea and OHCHR. Such cooperation is critical to facilitate the implementation of the
State’s international human rights obligations, including the commitments it made during
the universal periodic review, and is in accordance with the technical assistance mandate of
OHCHR in Seoul.
3. Strategy on accountability
20. In 2014, the commission of inquiry found that crimes against humanity had been and
were still being committed in the Democratic People’s Republic of Korea. This confirmed
the reports of various actors, including those who had left the Democratic People’s
Republic of Korea, members of civil society, and the current and previous mandate holders.
In the two years since the report of the commission of inquiry, there has been no indication
that the situation of human rights in the Democratic People’s Republic of Korea has
changed. Political prison camps remain in operation. Reports of torture and other violations
against prisoners in political and ordinary prisons continue. Religious followers reportedly
continue to face persecution, and persons attempting to flee the country appear to face
harsher treatment than in earlier periods. Food insecurity remains a serious issue. Despite
the reported availability of food at private markets, the failure of the public distribution
system and the absence of support for those who do not earn adequate cash income have
never been properly addressed. Lastly, those persons reportedly abducted from other
countries remain missing.
D. Accountability and future of the Korean peninsula
1. Discussions on unification
21. Since August 2015, relations between the two States on the Korean peninsula have
improved, as witnessed by the increase in interaction and dialogue. At the same time, the
Special Rapporteur noted that public discussions on a possible future unification seemed to
be gaining momentum in the Republic of Korea. In addition, the Government of the
Republic of Korea appears to be undertaking preparations, including a consideration of the
implications of unification for the legal frameworks of the two States.
22. In this new context, the Special Rapporteur stresses that accountability for crimes
against humanity must be part of any discussion about the future of the Korean peninsula,
including the scenario of unification. International law requires that those who are
responsible for crimes against humanity be held accountable. This will require a deep
reflection on how to approach unification and accountability in a way that promotes long-
term stability and strengthens the rule of law. Experiences from other States that have
undergone a process of transition show that reflection and discussion on possible
accountability mechanisms and processes should start at an early stage, and include long-
term strategies.
23. For the above reasons, crimes against humanity require prosecution at the national or
international levels. As the term implies, crimes against humanity are a concern for all of
humanity. Consequently, ensuring accountability for such crimes is an international as
much as a Korean challenge and requires the international community to play a role. At the
same time, mechanisms, such as truth commissions, reparations and memorialization may
complement these processes and provide a durable and practical way of ensuring that as
much truth as possible is revealed.
24. A failure to address serious and systemic violations this has the potential to
undermine the legitimacy and credibility of the system, and may therefore become a
destabilizing factor. In addition, such a failure deprives victims of the justice and
guarantees of non-repetition to which they are entitled. Persistent human rights issues, such
as systematic discrimination and unequal distribution of wealth and services, must also be
addressed. Furthermore, the justice and security sectors would require reform to meet
international human rights standards, including through vetting. Without such reforms,
prosecution would have little effect in the long term. The question should never be whether
to pursue accountability, but rather when and how.1 Efforts to ensure accountability must
take into consideration the risk of a rapid deterioration in the humanitarian situation in the
Democratic People’s Republic of Korea. In this respect, greater support for humanitarian
organizations and other entities that operate in the country is required to mitigate that risk
and to enhance their capacity to foresee emergencies.
2. Responsibility to prosecute
25. With regard to accountability, the Special Rapporteur stresses that the finding by the
commission of inquiry that crimes against humanity have been and are being committed in
the Democratic People’s Republic of Korea demands that the international community
prosecute those responsible for such crimes, in particular those most responsible for their
authorization, ordering and perpetration. In this regard, the Special Rapporteur highlights
the preamble of the Rome Statute of the International Criminal Court, which states that “it
is the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes”. Furthermore, in the Declaration of the high-level meeting of the
General Assembly on the rule of law at the national and international levels, the Heads of
State and Government and heads of delegation attending the meeting on 24 September 2012
committed to ensuring that impunity is not tolerated for crimes against humanity and gross
violations of human rights law, and that such violations are properly investigated and
appropriately sanctioned, including by bringing the perpetrators of any crimes to justice,
through national mechanisms or, where appropriate, regional or international mechanisms,
in accordance with international law.2
26. By imposing an obligation to extradite or prosecute, various conventions obligate
States to cooperate in combating impunity.3 An obligation to extradite or prosecute for,
1 Guidance note of the Secretary-General on the United Nations approach to transitional justice, 2010,
p. 6.
2 General Assembly resolution 67/1.
3 International Law Commission, “The obligation to extradite or prosecute (aut dedere aut judicare)”,
para. 1.
inter alia, crimes against humanity is also stipulated in article 9 of the Draft Code of Crimes
against the Peace and Security of Mankind, according to which a State party in the territory
of which an individual alleged to have committed a crime is found is to extradite or
prosecute that individual.
27. The Special Rapporteur again stresses that the continuing situation in the
Democratic People’s Republic of Korea behoves the international community to take
prosecutorial measures in relation to crimes against humanity committed in that country.
E. Structural and operational aspects of an effective process of
accountability
1. Crimes against humanity
28. As the commission of inquiry noted, the prohibition of crimes against humanity
forms part of the body of pre-emptory norms (jus cogens) that bind the entire international
community as customary international law (see A/HRC/25/CRP.1, para. 1195).
Consequently, individuals who commit crimes against humanity in the Democratic People’s
Republic of Korea may be held responsible on the basis of customary international law,
even though the State is not a party to the Rome Statute of the International Criminal Court
and has no provisions against crimes against humanity in its domestic criminal law. The
Special Rapporteur also recalls that international law does not permit amnesties for crimes
against humanity, particularly in relation to those most responsible for such crimes.
Similarly, it is an established principle of international law that acting on the orders of a
superior is not a defence for perpetrators of crimes against humanity (see ibid.).
2. Command and superior responsibility
29. The Special Rapporteur also recalls that, according to the principle of command and
superior responsibility under international criminal law, military commander and civilian
superiors are criminally responsible for failing to prevent or repress crimes against
humanity committed by persons under their effective authority and control.4 Consequently,
the criminal responsibility of the uppermost leadership of the Democratic People’s
Republic of Korea, including the Supreme Leader, for crimes against humanity must be
considered, for ordering or instigating such crimes, even if lower-ranking officials carried
out the crimes.
3. Principle of complementarity
30. With regard to the obligation to prosecute, it remains the rule that States have
primary responsibility to exercise jurisdiction over serious crimes under international law.5
When national courts are unable to offer satisfactory guarantees of independence and
impartiality or are materially unable or unwilling to conduct effective investigations or
prosecution, international and internationalized criminal tribunals may exercise concurrent
jurisdiction. 6 International and internationalized tribunals are not, however, intended to
stand in for domestic courts or to replace domestic obligations to investigate, prosecute and
punish. This principle of complementarity rests on a combination of respect for State
4 Rome Statute of the International Criminal Court, art. 28.
5 See E/CN.4/2005/102/Add.1, principle 20.
6 Ibid.
sovereignty and respect for the principle of universal jurisdiction.7 The principle allows
States to exercise jurisdiction and to determine how to proceed with an alleged perpetrator
on the basis of its own national law,8 while accepting that those who have committed
international crimes may be prosecuted through international criminal bodies if national
processes do not deliver justice.9
4. Republic of Korea
31. The Special Rapporteur notes that the Republic of Korea appears to be well
positioned to move forward with criminal proceedings, even if not all aspects of crimes
against humanity found by the commission of inquiry could be addressed. The Republic of
Korea has been a State party to the Rome Statute of the International Criminal Court since
13 November 2002. Furthermore, human rights constitute a major issue in the legal system
of the Republic of Korea; Specifically, respect for human rights is a paramount
consideration in the Constitution,. The universality of human rights is expressed in various
international instruments that have been ratified by the Republic of Korea; consequently,
the legal system of the Republic of Korea is protects human rights, and the principle of
human rights guides how the legal system operates. Both the Government of the Republic
of Korea and accused parties can refer to human rights norms in the legal system. To
conform to international human rights standards, and to be credible to all parties, these
processes must uphold strict safeguards of the rights of the defendant, including the
presumption of innocence. Such a legal system also ensures the dignity of the rights of
victims, while ensuring accountability for human rights violations.
32. The most important aspect of such legal prosecutions is that they be complemented
by a broader transitional justice approach. Legal prosecution may ensure formal justice in
some cases, but a legal system alone may not to be able to cope with the number of
perpetrators. Furthermore, it might not be desirable to address all violations through
prosecution. The disclosure of the whole truth and other mechanisms through which the
dignity of victims can be restored may be equally important for a society to be able to face
its past and move towards sustainable peace.
5. Principle of universal jurisdiction
33. The principle of “universal jurisdiction” may also allow for the prosecution of the
leadership of the Democratic People’s Republic of Korea in a third country. The principle
establishes a territorial jurisdiction over persons for extraterritorial events where neither the
victims nor alleged offenders are nationals of the forum State and no harm was allegedly
caused to the forum State’s own national interests.10 This principle is based on the notion
that “certain crimes are so harmful to international interests that States are entitled – and
even obliged – to bring proceedings against the perpetrator, regardless of the location of the
crime and the nationality of the perpetrator or the victim”.11 This principle is a critical
component for the prosecution of alleged perpetrators of crimes of international concern
when the alleged perpetrator is not prosecuted in the territory where the crime was
committed.12 Several international instruments, including the four Geneva Conventions of
7 Xavier Philippe, “The principles of universal jurisdiction and complementarity: how do the two
principles intermesh?” International Review of the Red Cross, vol. 88, No. 862 (June 2006), p. 380.
8 Ibid., p. 388.
9 Ibid., p. 381.
10 International Law Commission, “The obligation to extradite or prosecute” (see footnote 3), para. 18.
11 Mary Robinson, forward to The Princeton Principles on Universal Jurisdiction (Princeton, New
Jersey, Princeton University, 2001), p. 16.
12 International Law Commission, “The obligation to extradite or prosecute” (see footnote 3), para. 18.
1949 and the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment require State parties to either exercise universal jurisdiction over
offences or to extradite alleged perpetrators to another State for prosecution.13
34. In reality, the implementation of the above general principle remains limited, given
that it depends on national law. States are entitled to grant their courts universal jurisdiction
over certain crimes as a national decision. Consequently, the application of the principle of
universal jurisdiction has not been uniform. Some States apply a narrow concept, allowing
the prosecution only if the accused is available for trial, while others adopt a broader
concept that allows for the initiation of proceedings even in the absence of the accused.14
Trials in a third jurisdiction pursuant to universal jurisdiction suffer the same weaknesses as
purely international trials, such as remoteness from the victims and consequently the
limited impact in restoring trust in the rule of law, and possible politicization.15 In the case
of the Democratic People’s Republic of Korea, the fact that most suspects likely remain
also constitutes a serious obstacle to the controversial extent of universal jurisdiction in
terms of in absentia indictment or trial. Another limitation of trials based on universal
jurisdiction is that current customary international law would not allow the prosecution of a
sitting head of State; the prosecution of the Supreme Leader of the Democratic People’s
Republic of Korea is thus precluded.16
35. Despite challenges, prosecution based on the principle of universal jurisdiction
might present the only opportunity to move forward on establishing criminal accountability,
while the possibility of such prosecution may serve as a catalyst for other processes.
6. International Criminal Court
36. While pursuing prosecution in national courts, the Special Rapporteur remains
convinced that the Security Council should refer the situation of human rights in the
Democratic People’s Republic of Korea to the International Criminal Court, as
recommended by the commission of inquiry (A/HRC/25/63, para. 94(a)) and subsequently
encouraged by the General Assembly in its resolutions 69/188and 70/172. The Security
Council could refer the situation in the Democratic People’s Republic of Korea to the
International Criminal Court on the basis of article 13(b) of the Rome Statute and Chapter
VII of the Charter of the United Nations.
37. In the event that the Security Council decided not to refer the situation to the
International Criminal Court, the General Assembly could establish a tribunal
(A/HRC/25/63, para. 87). In this regard, the General Assembly could rely on its residual
powers recognized in, inter alia, its resolution 377 (V) (“Uniting for peace”), which
provided that, if the Security Council, because of lack of unanimity of the permanent
members, fails to exercise its primary responsibility for the maintenance of international
peace and security in any case where there appears to be a threat to the peace, breach of the
peace, or act of aggression, the Assembly should consider the matter immediately with a
view to making appropriate recommendations to Members for collective measures.
Significantly, the resolution was adopted in response to the impasse in the Security Council
13 Ibid.
14 Philippe, “The principles of universal jurisdiction and complementarity” (see footnote 7 above), p.
379.
15 OHCHR, Rule-of-Law Tools for Post-Conflict States: Prosecution initiatives (United Nations,
Geneva, 2006), p. 29.
16 International Court of Justice, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v.
Belgium), judgment of 14 February 2002.
with regard to the Korean War.17 The combined sovereign powers of all individual Member
States to try perpetrators of crimes against humanity on the basis of the principle of
universal jurisdiction could also be the basis to establish such a tribunal (see
A/HRC/25/CRP.1, para. 1201).
F. Way forward
38. Given the gravity of the violations committed in the Democratic People’s Republic
of Korea, the international community is obliged to take steps to ensure accountability. As
summarized above, there are various practical and legal issues to be further developed. In
this regard, there are two main bodies central to moving the accountability agenda forward:
the group of experts on accountability, and OHCHR in Seoul.
1. Group of experts on accountability
39. First, a group of independent experts should be formed. The group should have three
main responsibilities:
(a) To establish the present state of international law and prevailing State
practices on accountability;
(b) To determine an appropriate approach to ensure State accountability of
crimes against humanity committed by the Government of the Democratic People’s
Republic of Korea;
(c) To recommend creative and practical mechanisms of accountability that are
most effective in securing truth and justice for the victims of crimes against humanity in the
Democratic People’s Republic of Korea.
40. In recent years, there have been significant developments in international law with
regard to accountability, such as the establishment of the International Criminal Court and
other tribunals. Nonetheless, the Special Rapporteur notes with deep concern the prevalence
of recourse to amnesties, sometimes in contravention of obligations under international
human rights law. Against this background, the group should clearly lay down the
international legal ground for accountability.
41. The fundamental steps leading to prosecution are to define crimes, to identify actors
and to present evidence of criminal wrongdoing. The commission of inquiry laid the
groundwork for these three steps. The urgent challenge now is to determine which methods
can be most effectively utilized to hold perpetrators accountable, while allowing victims to
know the truth of what happened in the past.
42. Since the commission of inquiry concluded its work, there has been no
comprehensive analysis of which models could be most appropriate. Such an analysis
should include a review of the types of courts available, advantages and disadvantages in
the context of the Korean peninsula, and the possible scope of prosecution. The Special
Rapporteur again stresses the importance of the International Criminal Court, while
acknowledging that the Court is able to handle only the uppermost leadership. He notes that
there is sometimes a temptation to deal with those who do not face prosecution in the
International Criminal Court through collective agreements or processes. This approach of
dealing with those who have not been brought before the Court carries the risk of
entrenching impunity, undermining national legal processes and fostering resentment and
17 See Christian Tomuschat, “United for Peace: General Assembly resolution 377 (V), 3 November
1950”, United Nations, 2014.
the perception of injustice. It denies victims their right to justice, and may set a dangerous
precedent that will have an adverse impact on future stability and the rule of law. It would
also set another dangerous precedent at the international level.
43. In the course of its work, the group should consider experiences from other countries
that have undergone transitional justice processes, in particular those where international
criminal justice has been involved. At the same time, the group should provide advice that
takes into account the unique situation of the Korean peninsula. As a guiding principle, the
group should adopt a victim-centric approach to accountability and give due importance to
the protection of the dignity of victims. This would include, in particular, taking into
account concerns related to women, children and other marginalized groups.18
44. The Special Rapporteur recommends that the panel comprise two or three experts,
possibly including the next mandate holder. The group would be expected to start working
in June 2016 for six months, with the possibility of extension. The group could submit an
interim report to the Human Rights Council at its thirty-third session and a final report at
the thirty-fourth session.
2. Field presence of the Office of the High Commissioner
45. The OHCHR field presence in Seoul continues to play a critical role in preparing for
future accountability processes. Together with the documentation by the commission of
inquiry, evidence gathered by the Office will be particularly important to achieve a more in-
depth understanding of the nature and scope of violations, and to determine responsibilities.
One key endeavour is the mapping of suspected perpetrators of grave human rights
violations and the related chain of command structures. The Office is tasked with
undertaking a comprehensive analysis of the structure of the regime. It will also gather the
most recent information about developments in the Democratic People’s Republic of
Korea, including recent violations. The Special Rapporteur invites the OHCHR field
presence to conduct this work in consultation with partners. In order to gather the most
relevant information, the Office must be guaranteed an enabling environment with the full
cooperation from all relevant actors, including Governments, and it must be provided with
adequate resources to discharge effectively its mandate.
III. Conclusions and recommendations
46. Two years have passed since the commission of inquiry published its report, in
which it found that crimes against humanity had been and were being committed in
the Democratic People’s Republic of Korea. Regrettably, it does not appear that the
situation of human rights in the country has improved, and the crimes against
humanity documented by the commission appear to continue. While the Democratic
People’s Republic of Korea has at times indicated its willingness to engage with the
international community on some human rights issues, this has not yet led to any
tangible improvement in the situation of human rights.
47. The period covered in the present report was characterized by greater
interaction between the Democratic People’s Republic of Korea and the Republic of
Korea. Discussions on the possibility of unification among government actors and other parties in the Republic of Korea appear to be gaining traction.
48. The international community, while taking advantage of the opportunities for
increased interaction between the Democratic People’s Republic of Korea and the
18 Guidance note of the Secretary-General (see footnote 1 above), 2010, p. 6.
Republic of Korea, should also continue to take steps to facilitate holding to account
those who have committed crimes against humanity.
49. The Special Rapporteur on the situation of human rights in the Democratic
People’s Republic of Korea calls upon the Human Rights Council:
(a) To extend the mandate of the Special Rapporteur, given that the
situation of human rights in the Democratic People’s Republic of Korea has hardly
improved;
(b) To arrange to have an official communication, by the Human Rights
Council, the Special Rapporteur or the United Nations High Commissioner for
Human Rights, addressed to the Supreme Leader of the Democratic People’s Republic
of Korea to advise him and other senior leaders that they may be investigated and, if
found to be responsible, held accountable for crimes against humanity committed
under their leadership;
(c) To establish a group of independent experts with a mandate (i) to
establish the present state of international law and prevailing State practices with
regard to accountability; (ii) to determine an appropriate approach to ensure State
accountability for crimes against humanity committed by the Government of the
Democratic People’s Republic of Korea; and (iii) to recommend creative and practical
mechanisms of accountability to secure truth and justice for the victims of crimes
against humanity in the Democratic People’s Republic of Korea. Given the resource
constraints faced by the Office of the High Commissioner and its field presence in
Seoul, which has its own mandate, the group of experts should be established by the
Human Rights Council;
(d) To ensure that the field presence of OHCHR in Seoul tasked with
following up on the work of the commission of inquiry can function with
independence, has sufficient financial resources and enjoys full cooperation with
relevant Member States;
(e) To urge the Government of the Democratic People’s Republic of Korea
to invite the Special Rapporteur to undertake a visit to the country as soon as possible,
without preconditions, in accordance with the terms of reference for country visits by
special procedure mandate holders, and more generally to cooperate with the
mandate;
(f) To task the Special Rapporteur or OHCHR with the formulation of a
comprehensive policy on humanitarian assistance for the Democratic People’s
Republic of Korea.
50. The Special Rapporteur urges the Government of the Democratic People’s
Republic of Korea:
(a) To halt immediately the human rights violations identified by the
commission of inquiry in its report;
(b) To resume dialogue with the Special Rapporteur, and to consider
reissuing the invitations extended to all stakeholders concerned, including the Special
Rapporteur;
(c) To establish substantive communications with OHCHR, including with a
view to possible technical cooperation through the OHCHR field presence in Seoul;
(d) To engage genuinely in bilateral talks with the Republic of Korea and
Japan, and to abide by the terms of bilateral agreements concluded, first and foremost
in the interests of victims of human rights violations, including abductions, and their
families;
(e) To cooperate with United Nations human rights mechanisms, including
the Special Rapporteur, by granting them access to the country with a view to, inter
alia, assisting in and assessing the implementation of the recommendations accepted
by the State during the second cycle of the universal periodic review.
51. The Special Rapporteur calls upon Member States:
(a) To take concrete steps towards achieving accountability for those
responsible for serious human rights violations in the Democratic People’s Republic of
Korea, including by means of referral by the Security Council of the situation in the
country to the International Criminal Court;
(b) To make use of the principle of universal jurisdiction to realize and
maximize the potential deterring effect of the findings and recommendations of the
commission of inquiry, and thus to help to protect the population of the Democratic
People’s Republic of Korea from further crimes against humanity;
(c) To ensure that the Security Council holds regular briefings on the
situation in the Democratic People’s Republic of Korea, with the participation of the
United Nations High Commissioner for Human Rights and other relevant experts,
including the Special Rapporteur;
(d) To facilitate the work of the field-based structure and the Special
Rapporteur, and to provide them with timely access to relevant information and
potential witnesses, in particular those who have left the Democratic People’s
Republic of Korea, who may have information crucial to ensuring accountability;
(e) To involve fully civil society actors in the efforts of Member States to
address the situation in the Democratic People’s Republic of Korea;
(f) To protect persons from the Democratic People’s Republic of Korea who
have sought refuge in, or are transiting through, the territory of a Member State by
abiding with the principle of non-refoulement.
52. The Special Rapporteur calls upon the United Nations system as a whole to
address the grave human rights situation in the Democratic People’s Republic of
Korea in a coordinated and unified manner, in accordance with the Secretary-
General’s Human Rights Up Front initiative.
53. The Special Rapporteur calls upon civil society to continue its critical work in
raising awareness of the situation of human rights in the Democratic People’s
Republic of Korea, including by reporting on human rights violations committed by
the Government of the Democratic People’s Republic of Korea.
54. The Special Rapporteur thanks all the partners and stakeholders who extended
full cooperation and support during his mandate, and hopes that the common goal to
improve the situation of human rights in the Democratic People’s Republic of Korea
will be achieved in the near future.