North Korean human rights and the international community: responding to the UN Commission of...

Asia-Pacific Journal on Human Rights and the Law (2014) 15 (1&2) 51-72

© Koninklijke Brill NV, Leiden, 2015

SPECIAL SECTION ON NORTH KOREA

NORTH KOREAN HUMAN RIGHTS AND THE

INTERNATIONAL COMMUNITY: RESPONDING TO THE UN COMMISSION OF INQUIRY

Danielle Chubb*

Introduction Of all the difficult conversations to have with the Democratic People’s Republic of Korea (DPRK) regime, the one over human rights has proven the most troubling for the international community. Once human rights issues are placed on the table, diplomatic efforts become quickly de-railed. Because of this, and because issues such as non-proliferation are seen as more pressing than human rights, there has been a conspicuous absence of any official, systematic response to the question of human rights violations in North Korea. Of course, most human rights campaigns experience some amount of politicisation. This is unsurprising, given the deeply political nature of the very concept of human rights. The North Korean human rights issue, however, suffers from this phenomenon more than most, tied up as it is with wider ideological battles that hark back to the circumstances of the division of the Korean peninsula.1 In this context, the 2014 report delivered by the United Nations (UN) Commission of Inquiry (COI) into North Korean human rights represents an effort to move above and beyond the politicisation of the issue and was largely successful in this regard, as discussed below.

From the perspective of the international community of states, the report asked – and answered – two important questions. Does the state of human rights violations in the DPRK require an international response? If so, how can such a response be incorporated into security, economic and humanitarian dealings with North Korea? After spending some time

* Lecturer in International Relations, Deakin University, Burwood, Australia. 1 For an account of the circumstances under which the DPRK was established, see Bruce Cumings, Korea’s Place in the Sun - A Modern History (2nd edn, W.W. Norton and Company 2005) Ch.3 and Andrei Lankov, The real North Korea: life and politics in the failed Stalinist utopia (OUP 2013) Ch.1.

DOI: 10.1163/15718158-15010204

North Korean Human Rights and the International Community

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answering the first question definitively in the affirmative, the report’s detailed findings went on to answer the second with a comprehensive blueprint for action. The question now is, to what degree will this blueprint – with its broad-ranging recommendations – be adopted by the international community? What is the most likely response to the inquiry? Non-state actors have been leading the conversation about these issues since the late 1990s and any response at the state level will thus not take place in a vacuum but will instead feed into conversations that are already taking place. The international community is now facing the central questions of what approach will best bring about human rights compliant outcomes in North Korea, and who has responsibility for taking action. These are the very issues that have occupied the attention of the transnational North Korean human rights community – from activists to humanitarian workers – over the past decade and a half, and there is much that policy makers can learn from these conversations. This article examines the central ideas behind the wide variety of policy options open to the international community, through a parsing of these non-state realm debates in an effort to predict the opportunities and challenges that face states as they seek to respond to the COI’s findings. I. The UN COI into North Korean Human Rights: Goals and Achievements There has long been a broad understanding within the international community that the human rights situation in North Korea is egregious and a response is required. In this sense, the COI report has served to add further legitimacy to those who argue for the urgent nature of any such response. From the mid-1990s, when information about human rights violations first started trickling out of the country, until the report was commissioned in 2013, the documentation and verification of the testimonies of North Koreans had been largely left in the hands of human rights advocates and humanitarian workers. While the most headline-grabbing outcomes of the report – specifically, the recommendation to refer the DPRK to the International Criminal Court (ICC), discussed later – have gained the majority of press coverage, the COI has in fact had multiple goals and successes. The process through which human rights norms are internalised in domestic practices has been the subject of scholarly investigation. Here, International Relations scholars have drawn on the insights of social constructivism and social movement theory to investigate the ways in which non-state actors are successful in placing an issue on the international agenda and, subsequently, in bringing about change in both

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policies and behaviour.2 In their work on the subject, Risse & Sikkink explore and describe this process which they conceptualise as a ‘spiral mode’ of human rights change. A central feature of this model is the involvement of a large number of actors with a variety of characteristics. The importance the model attributes to strong interactions between transnational advocacy networks, international organisations (comprised of states) and Western governments is of particular note for the North Korean case where civil society actors, UN organisations and Western governments have increasingly come to work together (discussed below). 3

The COI report is an important outcome for the transnational advocacy network on North Korean human rights, and the spiral model helps flesh out exactly what advantages such a report brings the network’s broader work. In the model, successful transnational advocacy networks tend to be composed of groups which may have some level of interaction with human rights international organisations (IOs), and this is the case in the North Korean human rights arena, where there has been a high level of cooperation between the COI and a number of civil society groups. NGOs were directly involved in placing pressure on the UN human rights body to take more direct action on the North Korean human rights issue. The Seoul-based International Coalition to Stop Crimes against Humanity in North Korea (ICNK) was established with the express goal of forming such an inquiry at the UN level.4 ICNK relied on public awareness raising – through hearings in national parliaments and public arts exhibitions – and the coalition comprises over 40 NGOS involved with North Korean human rights advocacy. Representatives from Citizens’ Alliance for North Korean Human Rights, another Seoul-based NGO, arranged a December 2012 meeting between Navi Pillay, the UN human rights commissioner, and North Korean defector activists. Shortly following this meeting, Pillay publicly urged the UN’s member states to pay more attention to the North Korean human rights issue: ‘because of the enduring gravity of the [North Korean human rights] situation, I believe an in-depth inquiry into one of the worst – but least understood and reported – human rights situations in

2 For an overview of this early scholarship, see Richard Price, ‘Transnational Civil Society and Advocacy in World Politics’ (2003) 55 World Politics 579. 3 Thomas Risse and Kathryn Sikkink, ‘The socialization of human rights norms into domestic practices’ in Thomas Risse, Stephen Ropp and Kathryn Sikkink (eds), The power of human rights: International norms and domestic change (CUP 1999) 20. 4 ICNK, ‘About the ICNK: Introduction’ <www.stopnkcrimes.org/about_01.php> accessed 14 November 2014.


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the world is not only fully justified, but long overdue.’5 The COI was established thereafter.

As well as bringing an increased international profile to the issue, the COI was also successful in a range of other goals. The COI team worked to bring together the vast amount of information about human rights in the DPRK – much of it collected by human rights activists – and supplement this data with its own series of testimonies and accounts, through a series of private and public hearings.6 The comprehensive and official nature of the report provides an important validation to the North Korea human rights issue, the lack of which has delayed strong responses from Western governments thus far. This provision of a single point of focus opens up further possibilities for international action, reducing as it does the transaction costs involved in the collection of reliable information.7 While the road to a comprehensive international response will be a long one, the COI’s contribution to this process is thus significant in a number of ways: the systematic collation and codification of human rights abuses in the DPRK; the specific allocation of blame on individuals in the DPRK and the emphasis on bringing these individuals to account; the reduction of transaction costs; the promotion of a human rights focus to all international interaction with North Korea and, finally, the legitimation of the North Korean human rights agenda and the concomitant profile that came along with this. II. The Politics of North Korean Human Rights The immediate, tangible outcome of the UN inquiry – the COI’s 372 page report – provides a clear documentation of the issues facing the UN as its member states seek to bring about real and lasting improvements in North Korea, as well as bring perpetrators of crimes against humanity to

5 Office of the High Commissioner for Human Rights, ‘Pillay urges more attention to human rights abuses in North Korea, calls for international inquiry’ (Geneva, 14 January 2013) <www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12923&LangID=E> accessed 14 November 2014. 6 For a detailed discussion of the COI’s methodology, see Michael Kirby, ‘The report of the UN Inquiry On Human Rights In North Korea: International law meets a moment of truth’ (Public Lecture HKU, 17 October 2014) <www.law.cuhk.edu.hk/research/crj/download/papers/20171017-Kirby-UN-DPRK-Report.pdf> accessed 17 November 2014. 7 For the importance of reduced transaction costs in impelling states to action over issues relating to international human rights law, see Ryan Goodman and Derek Jinks, ‘How to influence states: socialization and international human rights law’ (2004) 54 Duke L J 621, 674 .

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account.8 This is an important turning point in the debate over how to respond to the North Korean human rights situation. It is important to remember, however, that this is a conversation that has been taking place for some time now and the issues that have animated this debate among activists over the past 15 years hold important clues for how the international community is likely to act in response to the report, and the types of issues that may prove to be sticking points moving forward. The international community’s response to the COI report will not take place in a vacuum and the debates that have both instructed and obstructed action at the level of civil society are likely to be mirrored, if not enhanced, when elevated to the state level.

To understand clearly the issues at stake, it is helpful to examine the substance of these debates, as well as the nature of the arguments brought to the conversation by various stakeholders in the civil society realm. In the section to follow, I will first explore the philosophical and political underpinnings of the various debates. Subsequently, in order to understand how these perspectives have found resonance in public debate, responses to North Korean human rights issues inside the United States and South Korea will be examined. While there are a number of states where civil society has been active on the North Korean human rights issue, the debates taking place in Washington DC and Seoul are particularly pertinent, given the influential role that these two countries’ governments have vis-à-vis North Korea. For this reason, analysis will be restricted to these two cases, although many other valid examples of such conversations can be found elsewhere, particularly in Japan and Europe. The DPRK has shown itself particularly sensitive to US attempts to raise the North Korean human rights issue, and the high-profile nature of the US-DPRK relationship plays into domestic US conversations about the types of responses that are the most appropriate. Likewise, South Korean responses to questions of North Korean human rights are sensitive, but for a range of different reasons. For Seoul, the question of how to deal with North Korea – on the full ambit of issues – falls somewhere between foreign and domestic policy. While the government has a limited ability to influence outcomes, at the same time the future of North Korea is seen as deeply personal in the South.9

Academic and activist response to the COI report falls into a number of categories best understood along a spectrum. On one end, is the liberal

8 COI, Report of the detailed findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, UN Doc HRC/25/CRP.1 (7 February 2014) . 9 Shin argues that the notion of being ‘Korean’ is deeply rooted in the Korean collective identity, corresponding to a ‘blood-based notion of nation.’ See Gi Wook Shin, Ethnic nationalism in Korea: genealogy, politics and legacy (Stanford UP 2006) 16.


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internationalist view that the inquiry represents a substantive opportunity for the international community to take action on the human rights issue in a way that utilises available legal and institutional mechanisms. On the other end are those concerned that the COI will be used as a cover for political gain and are broadly critical of a human rights campaign that they believe obfuscates the lived situation of the majority of North Koreans and feeds into a discourse that promotes interventionist measures and prioritises civil and political rights (CP) over economic, social and cultural rights (ESC). Somewhere between these two reactions are those who argue that, while an international response to the North Korean human rights crisis was timely and necessary, the international community should be measured as it moves forward with the report’s recommendations.

The positions along the spectrum described above correspond to ongoing debates regarding the ethics of human rights action. Human rights activists and theorists often find themselves divided on the issue of the relative importance that should be afforded CP and ESC rights.10 While the indivisibility of rights remains an important premise, opinions differ over which set of rights the international community should be focusing its attention. The argument is not one of simply whether economic and social rights must be realised for civil and political rights to have meaning, or whether civil and political rights are a prerequisite for the realisation of economic and social rights. These are certainly important debates and go to the heart of the politics or operation of human rights. But as well as this political perspective on the issue, philosophical perspectives also supplement, and sometimes drive, the debate over human rights and humanitarian action.11

10 In the case of North Korea, the division tends to be between civil and political, and economic and social rights. The question of cultural rights is largely confined to religious culture and the limitations placed upon free expression of this – that is, the issue of freedom of religion, which is usually considered a CP issue. 11 Another way to think about the subject of human rights and humanitarianism is through the categories of ‘analytical’ and ‘operational’. This is a useful distinction for exploring the issues innate to humanitarian practice, but the emphasis on ‘what works’ that characterises the ‘operational’ speaks to only part of the issue when it comes to the politics of North Korean human rights. As such, the proposal to think about the North Korean human rights issue in terms of ‘philosophical’ and ‘political’ approaches, while it roughly corresponds to the analytical/operational division, is designed to get to the heart of the particular political issues animating debate of North Korean human rights issues. For an overview of the analytical/operational approach to human rights and humanitarianism, see James Darcy, Human Rights and Humanitarian Action: A Review of the Issues (Geneva April 2004) Background Paper prepared for the workshop on Human Rights and Humanitarian Action convened by the IASC Sub-Working Group and co-hosted by UNICEF, the UN High Commission for Human Rights and ICVA, <www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/2311.pdf> accessed 17 November 2014.

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The philosophical perspective plays into debates over the relative weight that international human rights NGOs (INGOs) and humanitarian organisations should give to each set of rights. Debates over the centrality of ESC rights speak to a range of issues including the relationship between hunger and human rights, the question of what it means to be human, and the degree to which groups committed to the cause of human rights should consider the full spectrum of rights to include ESC rights alongside CP ones. This last issue is of most relevance to the North Korean human rights debate. Liberal democratic theory has always afforded priority status to civil and political rights – the right to life, physical integrity and freedom – and this perspective has over the past half a century become the dominant voice on the world stage. In a world structured largely by liberal internationalist values, economic, social and cultural rights – once a set of rights championed through the socialist tradition – are now seen as necessarily concomitant, but not superior, to the realisation of civil and political rights.12 Of course, the International Covenant on Economic, Social and Cultural Rights13 was adopted by the UN General Assembly, and came into force alongside, the International Covenant for Civil and Political Rights.14 Yet it was not until the World Congress on Human Rights, held in Vienna in 1993, that the international community reaffirmed the universality, interdependence and indivisibility of the full spectrum of rights.15 While philosophical debates over whether ESC issues – negative rights concerns – can truly be considered ‘rights’ continue, INGOs have by and large settled on the formulation that a positive-law justification for its work represents the only legitimate position.16

What then are some of the hurdles facing advocacy INGOs as they seek to pursue the full range of human rights abuses and how do they seek to overcome them? Advocacy INGOs, which rely primarily on naming and shaming methodology, find that their approach is of limited utility in situations where the violation relates to a question of distributive justice.17 This, they argue, is largely a contextual issue; lacking the resources to 12 Neera Chandhoke, ‘Thinking through Social and Economic Rights’ in Daniel A. Bell and Jean-Marc Coicaud (eds), Ethics in action: the ethical challenges of international human rights nongovernmental organisations (CUP 2007) 181. 13 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR). 14 International Covenant for Civil and Political Rights 1966 (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR). 15 Victor Dankwa, Cees Flintermann and Scott Leckie, ‘Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights’ (1998) 20 Hum Rts Q 705. 16 Kenneth Roth, ‘Defending Economic, Social, and Cultural Rights: practical issues faced by an international human rights organization’ in Bell & Coicaud (n 12) 169. 17 ibid 170.


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delve deeply into the political, economic and social history of a particular community, arguments about distributive justice – which play into these historical factors – tend to largely fall on deaf ears. In these cases, local constituencies – rather than the INGOs whose headquarters are usually based elsewhere – are much more effective in convincing policy makers to bring about meaningful change. 18 These hurdles notwithstanding, the charters of INGOs today invariably include a commitment to the indivisibility of human rights; it is recognised that their work must take into account a commitment to ECS rights alongside CP rights.19

Advocacy INGOs are not the only international organisations that have had to grapple with a broader understanding of the rights spectrum. Humanitarian and development organisations, which are guided by the humanitarian principles of humanity, neutrality, impartiality and independence, have been forced to reconsider the degree to which advocacy for CP rights must form a part of their agenda. This shift from a needs-based approach to development to a rights-based approach to development is sometimes called the ‘new humanitarianism’,20 and has become a feature, not only of the framework used by agencies to guide their work, but has prompted institutional change in both international organisations and government bodies. The ‘rights up front’ approach most recently adopted at the state level by the UN is the most recent embodiment of the effort to understand what exactly this means for bringing about meaningful change in difficult circumstances. For humanitarian NGOs involved in the DPRK, the issues become tricky, as by its very nature, this work requires access. The dominant methodology – naming and shaming – which is used with such great effectiveness in the

18 Kenneth Roth, ‘Response to the critique of Neera Chandhoke’ in Bell & Coicaud (n 12) 199. 19 Examples include Human Rights Watch (HRW) and Amnesty International. On the FAQ section of their website, HRW addresses this directly: ‘While Human Rights Watch … [has] historically focused on civil and political rights, we have increasingly taken on social, cultural, and economic rights in our research and reporting. We have given particular attention to health, education, and housing’. See HRW, ‘Frequently Asked Questions’ <www.hrw.org/node/75138> accessed 14 November 2014. Amnesty International has a similar statement on its website, where it explains ‘Amnesty International had to adapt in deeper ways too … as more and more evidence came to light showing the connections between different human rights violations … Over time, it became increasingly clear that the denial of rights to food, health, housing and education needed to be addressed through access to justice too. So today we uphold the whole spectrum of rights enshrined in the United Nations’ Universal Declaration of Human Rights’. See Amnesty International, ‘An agent for change’ <amnesty.org/en/who-we-are/about-amnesty-international/an-agent-for-change> accessed 14 November 2014. 20 Darcy (n 11) 4.

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case of CP rights, 21 is problematic for field-based humanitarian organisations, and often leads to a loss of access. This ultimately renders humanitarian organisations incapable of helping deliver even the most basic conditions for human rights. Between 1998 and 2000, several prominent humanitarian agencies withdrew from the DPRK, for reasons of restrictions on their ability to monitor and evaluate their activities.22 One of these organisations, Médecins sans Frontières (MSF), was at the time particularly vocal in its criticism of food aid delivery in the DPRK.23 In 1998, concerned that the aid was not reaching the neediest North Koreans, and instead was being redirected for political purpose, MSF made attempts to ameliorate the situation through negotiation with the DPRK government. After failing to achieve a desirable outcome, the organisation decided to withdraw from North Korea completely.24

Unlike the philosophical perspective, which feeds into broader debates that have been playing themselves out in a range of contexts, across the globe, the political perspective is more particular to the North Korean case. North Korean human rights is, rightly so, often cited as a ‘hard’ case, sitting outside our usual paradigmatic understandings of how and why states act, what kind of international pressure might be effective, and the types of changes that might lead to positive outcomes. Indeed, the politics of the North Korean human rights issue speaks to the full range of concerns indicated under the banner of the philosophical perspective. The main question motivating activists is how can we bring about meaningful change in North Korea, and what does this meaningful change look like? Otherwise put, if the motivation for action is the betterment of human rights conditions for the North Korean people, what does a better human rights future in North Korea look like, and how do we get there in the most ethical manner possible?

21 Kenneth Roth, the executive director of US-based INGO HRW, argues that in cases where it is possible for the organisation to identify a ‘violation, a violator and a remedy’, the shaming methodology used by the group is of some utility and can be pursued. See Roth (n 16) 199. 22 Hazel Smith, Hungry for Peace: International Security, Humanitarian Assistance and Social Change in North Korea (United States Institute of Peace 2005) 127. 23 Mark Manyin, ‘Foreign Assistance to North Korea’ (2005) CRS Report for Congress 10 <fas.org/sgp/crs/row/RL31785.pdf> accessed 18 November 2014. 24 Michael Schloms, ‘The European NGO Experience in North Korea’ in Scott Snyder and L. Gordon Flake (eds), Paved With Good Intentions: The NGO Experience in North Korea (Praeger 2003) 56. In 2012, still citing concerns regarding the ability of international aid organisations to operate appropriately, MSF re-commenced its program in the DPRK, adopting what it has called an ‘adapted approach.’ See Médecins Sans Frontières, ‘International Activity Report’ (MSF, 2013) 41 <www.msf.org/sites/msf.org/files/msf_activity_report_2013.pdf> accessed 18 November 2014.


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Those who place themselves towards the liberal internationalist end of the spectrum accuse those emphasising the ECS issue of complicity; they argue that, by enabling humanitarian and other economic development on the DPRK regime’s terms, those who insist that the ESC rights of the North Koreans must be realised before CP issues can be addressed are in fact prolonging the suffering of the North Korean people. On the other hand, those tasked with delivering humanitarian and development assistance to North Korea, as well as those who advocate on the issues of continued food aid and warn against sanctions, accuse human rights activists of carelessness at best, or political motivation at worst; there is concern that otherwise well-meaning human rights work makes the working conditions for humanitarian professionals very difficult, and at times impossible. This, alongside a deep suspicion that many of those working on this issue simply have an ideological aversion to socialist regimes – feeding into the conversation above about the philosophical roots of these debates over political versus economic rights – and will not rest until they see regime change in North Korea. In both the US and South Korea, where the North Korean human rights movement has gained considerable traction, but where there are also strong humanitarian communities, debate over how to address the issue of human rights in North Korea speaks to all of the concerns addressed above. In the section to follow discord over the human rights/humanitarian divide in both countries will be discussed. In the US, much of the debate today turns on the question of sanctions, whereas in South Korea, the philosophical questions about how to best bring about good and just ends in North Korea continue to dominate discussions, even if this is not always explicit. III. North Korean Human Rights Campaigning: United States In the US, a small but passionate and committed community of activists has been pursuing the cause of North Korean human rights since the late 1990s. While the bifurcation is not as stark here as it is in South Korea (discussed below), there remains a disconnect between those who place ‘human rights’ at the top of their agenda, and those who speak of the human cost of North Korea’s authoritarian government in ‘humanitarian’ terms. If we examine the reasons for the division in terms of the philosophical and political perspectives described above, it is evident that while motivations for an individual’s preference for a human rights or humanitarian approach can most likely be traced back to their underlying philosophical beliefs about the relative importance of economic and social rights in North Korea, there is broad consensus among INGOs that the full spectrum of rights are interdependent. INGOs such as Amnesty

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International and HRW report on the issue, as well as the US-based Committee for Human Rights in North Korea (HRNK). While the emphasis remains on issues such as the rights of North Koreans living in China, freedom of movement (particularly the issue of movement across the Chinese/North Korean border) and concerns about reports of torture, public executions and detention in political prison camps,25 issues of food security and other ECS-related issues also factor significantly in the advocacy activities of human rights groups.26

While there is broad agreement that the full spectrum of human rights abuse must be addressed, the question of how to best pursue both ‘sets’ of rights simultaneously continues to divide the US human rights community. This debate often deals, directly and indirectly, with the question of ‘linkage’, a concept that harks back to the Cold War era. In US-based North Korean human rights circles, proponents of linkage argue that human rights should form an explicit part of every interaction that the US has with the DPRK, while others believe that each situation should be assessed for the suitability of such an approach. The biggest challenge facing human rights advocacy groups is how to incorporate the pursuits of CP issues in North Korea in a way that neither damages US diplomacy with North Korea over the nuclear issue (which is still viewed by the State Department as a foreign policy priority in East Asia) nor harms the efforts of workers on the ground in North Korea to bring about improvements in

25 See e.g. David Hawk, The Hidden Gulag: Exposing North Korea’s Prison Camps (2nd edn, Committee for Human Rights in North Korea 2012) <www.hrnk.org/uploads/pdfs/HRNK_HiddenGulag2_Web_5-18.pdf> accessed 17 November 2014; Ken E. Gause, Coercion, control, surveillance, and punishment: an examination of the North Korean police state (2nd edn, Committee for Human Rights in North Korea 2012) <www.hrnk.org/uploads/pdfs/HRNK_Ken-Gause_Web.pdf> accessed 17 November 2014; David Hawk, North Korea’s hidden gulag: interpreting reports of changes in the prison camps (Committee for Human Rights in North Korea 2013) <www.hrnk.org/uploads/pdfs/NKHiddenGulag_DavidHawk.pdf> accessed 17 November 2014. 26 See e.g. DLA Piper and U.S. Committee for Human Rights in North Korea (HRNK), Failure to Protect: A Call for the UN Security Council to Act in North Korea (DLA Piper LLP (US) 2008) <www.hrnk.org/uploads/pdfs/F2P_North_Korea_9-19-08_English.pdf> accessed 17 November 2014; HRW, A matter of survival: the North Korean government’s control of food and the risk of hunger (2006); Robert Collins, Marked for life: Songbun, North Korea’s social classification system (Washington DC 2012) <www.hrnk.org/uploads/pdfs/HRNK_Songbun_Web.pdf> accessed 17 November 2014; Amnesty International, Human rights for human dignity: a primer on economic, social and cultural rights (2nd edn, London 2014) <www.amnesty.org/fr/library/asset/POL34/001/2014/en/b31f06dd-3c14-4422-b249-0ac799f018af/pol340012014en.pdf> accessed 17 November 2014.


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ESC rights. The question of sanctions against North Korea exemplifies some of the issues at stake.

The use of sanctions against repressive regimes as a tool of statecraft is generally viewed as a non-aggressive form of diplomatic persuasion that serves to exert pressure through revenue-strangulation and raising the costs of cooperating with the targeted regimes.27 In the case of North Korea, these sorts of sanctions serve the purposes of those who believe that the advancement of human rights should be a priority issue for the US in its dealings with the North Korean regime. Members of Congress holding this view have been attempting to move a Bill expanding current US sanctions against North Korea into law. In 2013 Rep. Edward Royce introduced H.R. 1771 - North Korean Sanctions Enforcement Act of 2014 – to the House. H.R. 1771 lined the strengthening of sanctions to a range of findings by Congress, which expresses its concerns as follows:

The Government of North Korea’s conduct poses an imminent threat to the security of the United States and its allies, to the global economy, to the safety of members of the United States armed forces, to the integrity of the global financial system, to the integrity of global non-proliferation programs, and to the people of North Korea.28 H.R. 1771 passed through the House of Representatives on 28 July

2014 but was ultimately blocked in the Senate. Rep. Royce has reintroduced the Bill during the 114th Congress in the form of H.R. 757 (North Korea Sanctions Enforcement Act of 2015) and it is currently being considered by a Congressional committee. Human rights activists who have played a central role in drafting these Bills argue that the COI recommendations serve to bolster the case for passing it through Congress.29 The report, while it does not specifically call for these types of

27 The utility of sanctions as a tool of statecraft is the subject of much scholarly debate. See e.g. David Baldwin, Economic statecraft (Princeton UP 1985); Lisa L. Martin, Coercive cooperation (Princeton UP 1992); Daniel Drezner, The sanctions paradox: economic statecraft and international relations (CUP 1999); Etel Solingen (ed), Sanctions, statecraft and nuclear proliferation (CUP 2013); Arne Tostenson and Beate Bull, ‘Are smart sanctions feasible?’ (2002) 54 World Politics 373. 28 North Korea Sanctions Enforcement Act of 2014, H.R. 1771. 29 In a sample letter circulated to the public members of the North Korean Freedom Coalition for lobbying elected officials, the link between H.R. 1771 and the COI was expressly made: ‘The COI … recommended targeted sanctions against those responsible for crimes against humanity in North Korea. H.R. 1771 would give effect to that recommendation…’ See North Korea Freedom Coalition, ‘Text for Sample Letter’ (July 2014)

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unilateral sanctions, does recommend the adoption, by the UN Security Council, of ‘targeted sanctions against those who appear to be most responsible for crimes against humanity’.30

While the North Korean Sanctions Enforcement Act seeks to constrain the DPRK’s weapons proliferation and exert pressure with regard to improvements in human rights conditions, it contains within it a range of humanitarian exemptions, speaking directly to the longstanding position put forward by ESC advocates in the US, that CP rights should not be pursued without due consideration of the short-term economic impact of such measures on the North Korean people who rely on the continuation of humanitarian operations. Some concern has been expressed that, despite the Bill making exceptions for financial transactions that are exclusively intended for the provision of humanitarian assistance, the financial sanctions are likely to deter financial institutions from any transactions that relate to North Korea, severely hampering the work of NGOs that attempt to utilise local connections – especially the procurement of local goods and services – to conduct their work.31 Aid workers argue that because US sanctions – even when strictly targeted – restrict capital flow and deter foreign investment, there is little incentive for companies to pursue infrastructure or development projects in the DPRK. This, argues the humanitarian community, has immediate flow-on effects for the North Korean people.32 While on the one hand, proponents of sanctions argue that they are a useful nonviolent coercive tool that, properly targeted, can put pressure on the North Korean government to begin adhering to the international human rights conventions it is a party to, critics of sanctions argue that they are logically flawed and simply serve to stifle growth and

<www.nkfreedom.org/UploadedDocuments/2014.07_HR1771SampleLetter.pdf> accessed 28 August 2014. 30 COI (n 8). 31 The National Committee on North Korea, ‘H.R. 1771, the North Korea Sanctions Enforcement Act: Issues for Individuals and Organizations Operating in North Korea’ (13 August 2014) <www.ncnk.org/resources/briefing-papers/all-briefing-papers/h.r.-1771-the-north-korea-sanctions-enforcement-act-issues-for-individuals-organizations-operating-in-north-korea> accessed 17 November 2014. 32 Security analysts also warn that, by further isolating North Korea, an unintended consequence of the Bill could be to drive North Korea’s proliferation initiatives further underground, as it becomes more and more desperate for revenue. Joseph Dahl and Diane Stevenson, ‘Potential ramifications of the House’s North Korea Sanctions Act’, The Peninsula (Qatar, 21 August 2014) <blog.keia.org/2014/08/potential-ramifications-of-the-houses-north-korea-sanctions-act/> accessed 28 August 2014.


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development opportunities, prolong suffering and inhibit the realisation of a better standard of living for North Koreans.33 IV. North Korean Human Rights Campaigning: South Korea While North Korean human rights activism in the United States remains contentious, the divisions that are evident in South Korean civil society run even deeper. When news of human rights violations in North Korea started gaining a higher profile in South Korea in the late 1990s, the newly elected Kim Dae Jung government – populated by former student human rights activists who had spent their youth railing against the abuses of a right-wing government in Seoul – struggled to internalise the idea that a democratic South Korea might now turn its attention to human rights abuses in North Korea. For the generation that had just taken power in a newly democratic South Korea, beliefs surrounding human rights and democracy in their country had long been entangled with arguments about unification and resistance to the idea that the North Korean ‘threat’ could be used as a justification for the continuation of authoritarian rule in the South. With the realisation of democracy in South Korea, and hope for greater institutionalisation of human rights with the election of Kim Dae-Jung, the final goal of this generation of activists – unification – manifested itself in the ‘peace’ (or ‘peace and unification’) movement to which the North Korean human rights campaign is anathema due to the tendency for human rights issues to derail inter-Korean relations, complicate engagement efforts, and further isolate the North Korean regime.34

While most student activists transitioned into the new social movements, many of which formed the heart of the ‘peace and unification’ movement, not all former activists followed the trend. Some resisted the idea that the pursuit of human rights in South Korea was something different to the pursuit of human rights in North Korea. These formerly radical, left wing activists, who resisted the idea that progressive politics should steer clear of CP rights in North Korea, underwent a process of ideological conversion. This culminated in the creation of what is usually referred to as the ‘new right’ in South Korea, and single-issue groups advocating greater action on CP rights in North Korea were formed by these break-away human rights advocates whose activist roots can be found in the anti-authoritarian activism of the 1980s and democratic

33 Haeyoung Kim, ‘Stifled growth and added suffering: tensions inherent in sanctions policies against North Korea’ (2014) 46 Critical Asian Studies 91, 98. 34 Danielle Chubb, Contentious activism and inter-Korean relations (Columbia UP 2014) 167.

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transition.35 Divisions in South Korean society over how to best interact with North Korea run deep.

Another way to think about these divisions – and what they might mean for Seoul’s response to the UN COI – is to consider what South Korea’s history of contention over human rights, democracy and unification means in terms of the human rights/humanitarian or CP/ESC division. One observer argues that human rights advocacy in South Korea over the North Korean human rights issue has resulted in the internalisation of CP norms in South Korean civil society.36 I would argue, however, that a closer examination reveals that these CP rights have in fact developed in a state of constant tension with ESC rights advocates. That is, the dichotomisation of ‘human rights’ and ‘peace’ that was the result of decades of activism over democracy and unification related issues in South Korea has meant that any actor wishing to talk about CP rights in North Korea has been forced to first confront the idea that the two sets of rights sit uneasily with each other when it comes to North Korea. The idea that preparing North Korea for unification through engagement and development – the provision of ECS rights – is the best way to maintain peace and stability on the peninsula and bring about an outcome that is beneficial to the people living on both sides of the 38th parallel is one that resonates deeply in South Korean politics and society.

Efforts by US-based North Korean human rights activists to develop transnational linkages with South Korean civil society, alongside the evolution of political ideas in South Korea’s new democratic system, have allowed the cause of CP rights (in North Korea) to find some resonance over the past decade, particularly among a new generation of young South Korean voters.37 In addition, the election of a conservative government in 2007, after a decade of progressive rule, came on the back of the promise by presidential candidate Lee Myung Bak, to talk more openly about human rights in North Korea and develop a less conciliatory approach to inter-Korean relations which many increasingly viewed as a one-way relationship in which South Korean values and interests were consistently compromised for the sake of harmony. Promises of greater reciprocity and the integration of human rights ideas into the inter-Korean relations agenda have remained, however, largely rhetorical.

The reasons for this lack of action are too complex to be considered here, but a few comments are relevant to the question of what the COI

35 ibid 168-170. 36 Kyungyon Moon, ‘South Korean civil society organizations, human rights norms, and North Korea’ (2014) 46 Critical Asian Studies 65, 66. 37 For an in-depth exploration of the evolution of these political ideas in South Korea, see Chubb (n 34).


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report might mean for South Korean policy. The Commissioners’ line of questioning in Seoul, to activists, policy analysts and academics, revealed a sophisticated understanding of the deep historical roots of the South Korean approach to inter-Korean relations and the concomitant hurdles that human rights advocates face. Even those who have sought neutrality have battled against a sort of ideological pigeonholing that conflates the North Korean human rights agenda with a pro-democracy regime change platform, seen as ruinous to the cause of peace on the peninsula. The efforts taken by the Commission to come to terms with these domestic factors are reflected in a number of the recommendations that seek to bridge this divide. On the one hand, the COI recommends that all States provide more support to civil society organisations working to improve the situation of human rights in the DPRK and explicitly emphasises the inclusion of efforts to ‘document human rights violations and to broadcast accessible information into each country’.38 In South Korea, where North Korean human rights groups have struggled to either survive financially or carry out their activities unimpeded, this is an important lifeline recommendation. On the other hand, the COI recommends that efforts to increase people-to-people interaction – the activities favoured by ‘peace and unification’ or ‘engagement’ advocates – should be fostered. 39 While engagement has long been seen as a desirable pathway to the subtle, and long-term, achievement of human rights and democracy in North Korea, the COI report rejects the argument that engagement is by its nature incompatible with a more direct style of human rights advocacy. V. Post-COI: Implications for Political Action on North Korean Human Rights The COI reported its findings to the UN Human Rights Council (UNHRC) in March 2014, and the Resolution that was subsequently passed by the Council took up the full range of recommendations put forward by the inquiry. With the substantive work of the COI completed, the impetus for action now lies with the international community. The purpose of this overview has been to provide a brief synopsis of the active, multi-faceted, sophisticated and complex debates that have been taking place behind the scenes; largely in the headquarters of small, single-issue human rights NGOs based in Seoul and Washington DC,40 or in boardrooms, where

38 COI (n 8) [93]. 39 ibid [91]-[92]. 40 As noted above, North Korean Human Rights NGOs are based around the world, in Tokyo, London and other major cities. For the purpose of this paper, only the work of South Korean and US-based NGOs has been taken into account.

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human rights and humanitarian advocates have come together in efforts to make sense of the breadth of the issues over which they agree and disagree. These sorts of disagreements are not unusual in transnational civil society human rights campaigns. Indeed, a lack of consensus over how to best achieve the same ends is common. Shared values and beliefs, which theorists of transnational civil society have long believed to be a necessary element in any successful campaign,41 are in woefully short supply here. Yet, despite this, great achievements can be documented. The COI report, with its varied recommendations, from accountability in the ICC to greater people-to-people engagement, manages to encompass all these perspectives, hopes and fears, at once.

Of course, the authors of this report were not aiming to simply bring together the views of a wide range of stakeholders. The goal was to bring about real and lasting change in North Korea, a goal that requires action by member states. In this light, the potential impact of the COI lies in two broad areas. First, by providing a definitive and comprehensive analysis of the North Korean human rights situation – the first of its kind at this level – the report provides currency to groups (particularly those in South Korea) that have long been campaigning for a higher level of international attention given to the voiceless people of North Korea. Second, the wide-ranging nature of the report’s recommendations has the potential to provide clarity on the biggest sticking point: what kind of approach will best service the interests of the North Korean people? This question has mired States in a state of indecisiveness and a clear framework for action has been lacking. This report provides such guidelines, and it is now in the hands of the international community to decide whether it will take on board the full gambit of recommendations provided, or pick and choose the few that meet their own political ends.

While the report provided a long list of carefully targeted recommendations, it was the headline recommendation to the international community that grabbed the world’s attention. ‘The Security Council’, the report counselled, ‘should refer the situation in the Democratic People’s Republic of Korea to the International Criminal Court for action in accordance with that court’s jurisdiction’.42 Acting on the urgency of the report, a EU-Japanese Resolution submitted to the General Assembly’s Third Committee included the ICC referral recommendation and was 41 Margaret Keck and Kathryn Sikkink, Activists beyond borders: Advocacy networks in international politics (Cornell UP 1998) 2; Sanjeev Khagram, James Riker and Kathryn Sikkink, ‘From Santiago to Seattle: Transnational Advocacy Groups Restructuring World Politics’ in Sanjeev Khagram, James Riker and Kathryn Sikkink (eds), Restructuring World Politics: Transnational Social Movements, Networks and Norms (University of Minnesota Press 2002) 2. 42 COI (n 8) [94(a)].


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adopted by the General Assembly on 18 December 2014. The Resolution is now awaiting consideration in the UNSC. On 22 December 2014, the UNSC held a meeting on the situation in the DPRK, the first time the Council has met on an agenda item relating to the DPRK that was not specifically prompted by proliferation concerns. 43 While there is skepticism that it will pass through the UNSC without a veto by either China or the Russian Federation, some hold out hope that action on this might be possible.44 All of this is yet to be seen of course, and were the UNSC referral successful, it is likely that an international warrant would be issued for the arrest Kim Jong Un and other high ranking officials. The precedent here is Sudan, where a warrant placed on President Omar al-Bashir has placed pressure on his leadership and severely constrained his travel. In the case of North Korea, it is doubtful that this would place much strain on Kim’s leadership as North Korean leaders rarely travel outside the country, and when they do, only to China or Russia. More important would be the symbolism of the international community coming together to condemn the human rights situation inside the DPRK, which would in turn give greater impetus to efforts to prepare for how to deal with the crimes in a future, post-transition DPRK. The view, then, would be a long one.

In the months following the release of the COI report and leading up to the consideration of its findings by the UN Security Council, the UN has witnessed a flurry of diplomacy. From an International Relations perspective, these reactions tell us much about the questions that continue to dog the international community. This article has already considered in detail the types of philosophical and political debates that have characterised efforts to improve North Korean human rights thus far and, in this final section, will turn its attention to the difficult balancing act the COI report is attempting. The impetus for the UN to respond to the human rights situation in North Korea is clearly outlined in UNSC Resolution 1674,45 popularly known as the ‘Responsibility to Protect’ (R2P) doctrine. Two sets of normative principles underlie the very existence of the UN: state sovereignty and human rights. R2P is an effort to think systematically about how the international community can act at times when human and 43 Security Council Report, ‘DPRK (North Korea) – February 2015 Monthly Forecast’, 30 January 2015 <www.securitycouncilreport.org/monthly-forecast/2015-02/dprk_north_korea_10.php> accessed 25 February 2015. 44 Kirby points to the recent success in the UNSC, where members negotiated a Resolution over the MH17 crisis, despite expectations that Russia would wield the veto option. He argues that careful diplomacy resulted in this outcome and holds out hope that the same might be possible in the case of North Korea and the ICC referral question. See Kirby (n 6) 41. 45 UNSC Res 1674 (28 April 2006) UN Doc S/ RES/ 1674.

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state security come into direct conflict with each other. Importantly, the R2P doctrine is made of three pillars. First, that a state is responsible for ensuring the human rights of its populations. Second, that states should be supported in these efforts, where necessary, by the international community. Third, that when a state fails in this regard and proves itself either unable or unwilling to provide such protection, it is incumbent on UN member states to act in a timely and decisive manner.46 In an April 2014 dialogue with the Permanent Missions of Canada and Japan to the UN, together with the EU Delegation to the UN, Michael Kirby, Chairman of the COI, directly invoked R2P when he argued that an immediate implication of the COI report was that the international community must now accept that it has a responsibility to protect the population of the DPRK from the government: ‘what choice will we make? Do nothing today to say never again tomorrow? Or take action to say not one day further?’47

In terms of responding, then, to the documented human rights abuses, according to the UN mandate to protect human rights of populations whose own governments failed to provide such protection, the question must finally turn to how to bring about distinct and verifiable progress. In this respect, the report promotes a variety of responses, which fall into two broad categories: efforts to bring about accountability, and efforts to bring about verifiable progress. With regard to the first, the report strongly recommends that the international community must condemn and hold to account those responsible for human rights violations in the DPRK. At the same time, the report spends a great deal of space, in its conclusions, recommending that progress be brought about through slow, careful engagement designed to bring about changes in policy and the eventual institutionalisation of human rights norms in North Korea. The question now facing the international community is: can both these sets of goals be carried out simultaneously, or does progress in one area (e.g. referral to the ICC) inevitably lead to a stalemate in another (e.g. greater disengagement due to DPRK hostility over the ICC referral).

For its part, the DPRK has shown itself fully cognisant of this potential diplomatic discord, and has taken measures – largely unsuccessfully – to exploit the weaknesses that plague UN efforts to bring 46 James Pattison, Humanitarian Intervention and the Responsibility To Protect: Who Should Intervene? (OUP 2010) 3. 47 International Coalition for the Responsibility to Protect, ‘Member states told they must act now to uphold their RtoP populations in North Korea’ (undated) <www.responsibilitytoprotect.org/index.php/component/content/article/136-latest-news/5365-security-council-adopts-Resolution-on-prevention-of-genocide-reaffirms-rtop-un-member-states-told-they-must-act-now-to-uphold-their-responsibility-to-protect-populations-in-north-korea> accessed 13 November 2014.


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about concerted efforts on human rights issues. September 2014 saw the release of the ‘Report of the DPRK Association for Human Rights Studies’, which amounted to a defence of the DPRK’s human rights situation.48 The ideologically loaded language, lack of corroboration of the claims made and slanderous treatment of defectors that participated in the COI report meant that the DPRK Association report was never taken seriously by UN member states and journalists to whom it was distributed. If the report was intended to persuade some member states to reject the findings of the COI, its crude and overtly ideological nature was only magnified when compared with the thoroughness of the COI report.

The second form the DPRK response took was a decision to participate, for the first time, in the UN’s Universal Periodic Review process (‘UPR’). The DPRK provided a detailed response to the 268 recommendations made by member states. Human rights expert, David Hawk – a prominent critic of North Korea’s human rights record – called the report ‘a serious, considered and professional self-portrait of the DPRK’s human rights situation’, especially when compared with the report issued by the DPRK Association for Human Rights Studies in Pyongyang.49 Hawk further notes that DPRK’s response to the UPR report is instructive insofar as it lays out clearly the issues on which the international community could best expect progress, were dialogue on human rights to go ahead.50 In addition to the reports, North Korean officials also engaged in a series of overtures throughout September and October 2014. In what appeared to be direct efforts to either dissuade member states from voting ‘yes’ on the UN Resolution introduced to the General Assembly by the EU and Japan 51 or, alternatively, persuade members to soften the language so that the Resolution does not go so far as recommending referral to the ICC. These overtures included the offer, by the North Korean Foreign Minister, of a human rights dialogue with the UN as well as a further suggestion (this time by the Korean Workers’ Party International Affairs Secretary) that a direct DPRK-EU human rights dialogue might be possible. The DPRK’s UN representative, Ambassador Jang, took part in a public discussion at the Council of Foreign Relations

48 For the full text of the report, see Adam Cathcart, ‘Report of the DPRK Association for Human Rights Studies’ (13 September 2014) <adamcathcart.files.wordpress.com/2014/09/report-of-the-dprk-association-for-human-rights-studies.pdf> accessed 17 November 2014. 49 David Hawk, ‘North Korea responds to the UN Commission of Inquiry’ 38 North (16 October 2014) <38north.org/2014/10/dhawk101614/> accessed 10 November 2014. 50 ibid. 51 UNGA ‘Report on the Situation of human rights in the Democratic People’s Republic of Korea’ (14 November 2014) 69th Session Agenda Item 68(c) A/C.3/69/L.28/ Rev. 1 (drafted version).

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as well as at the UN, where he went head to head with Chairman Kirby over the report’s findings. However these efforts, coined by some as a ‘charm offensive’, seemed to come to an abrupt end once it became clear to the DPRK that human rights dialogue could not be used as a bargaining chip. The DPRK would not be rewarded for taking part in processes and discussions that are they expected to take part in as responsible stakeholders in the UN system.

Created with the purpose of promoting the cause of peace and security among states, the UN’s existence is predicated on two distinct, central and sometimes contradictory principles: sovereignty and human rights. Once sacrosanct, the conception of ‘sovereignty as authority’, whereby physical or political intervention is unacceptable under any circumstances, is no longer taken for granted. Instead, there is widespread recognition (encapsulated in the R2P doctrine described above) that sovereignty is a matter of responsibility, rather than authority. In addition, it is understood that this conception of responsibility brings with it the requirement to remain accountable to the international community on key human rights indicators and the protection of citizens. 52 Despite the progress made in bringing these ideas, now widely accepted, onto the international agenda, the principles that underlie claims to sovereignty still sit uneasily with the principle of universal human rights and R2P. It is this weak spot in the UN’s armour that the DPRK seeks to exploit when it offers dialogue and quiet diplomacy on human rights in exchange for softer language in UN resolutions, particularly with regards to ICC referral. Indeed, in the weeks following its charm offensive, the DPRK foreign ministry put out a statement stating, ‘The DPRK keeps the door of dialogue on genuine human rights open to the countries that respect its sovereignty but it will never allow any human rights dialogue or nuclear one with the enemy keen to overthrow it’.53 The timing of the statement is a clear indication that, for the DPRK, sovereignty as authority still structures thinking inside the country, where attempts to send individual office holders to account in an international court is seen as a violation of such sovereignty.

The UN COI is an important turning point for the North Korean human rights campaign. The energy of the international community is currently focused on the report’s headline recommendation of referring the DPRK to the ICC. In the longer term, as UN member states consider the

52 Pattison (n 46) 4. 53KCNA, ‘DPRK says No to US dialogue on Human Rights, nuclear dialogue aimed to bring down it’ Korea News Service (4 November 2014) <www.kcna.co.jp/item/2014/201411/news04/20141104-13ee.html> accessed 17 November 2014.


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vast array of recommendations brought forward by the report, questions about how to balance what look like conflicting goals – greater accountability and long-term improvement through engagement and diplomacy – will continue to be debated. This article has argued that the starting point for these debates exists in the civil society realm, for it is here that many of these questions have already been considered in detail. In particular, the question of how to best target sanctions, as well as the utility of various types of people-to-people engagement programs, find precedents in the US and South Korea. The UN COI report was written against the backdrop of efforts at the highest level of the UN, to incorporate human rights into all of the UN’s work in a more systematic and consistent way. The core issue that the international community faces is one that has in many ways formed the heart of the debate over North Korean human rights for over a decade: how or whether to incorporate a human rights response into security, economic and humanitarian dealings with North Korea. By demonstrating how a full range of measures – both engagement and advocacy-style in nature – can be adopted in a fashion that is logically consistent in both a philosophical and political sense, the UN report offers an important blueprint for South Korea. If taken in its entirety, the report offers a new way of thinking about North Korean human rights and opens up a new range of possible solutions, the most important of which is the idea that the pursuit of CP and ESC rights are not mutually exclusive.

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