Yongusil 50: A Cause for Optimism–Michael Kirby in Hong Kong

By | October 26, 2014 | No Comments

Screen grab of Justice Kirby speaking at a panel discussion on "The Human Rights Situation in North Korea." | Image: UN Web TV

Screen grab of Justice Kirby speaking at a panel discussion on “The Human Rights Situation in North Korea.” | Image: UN Web TV

After an initial flurry of media attention on its release in February this year, the report of the UN Commission of Inquiry (CoI) into North Korean Human Rights seemed to reach a sticking point. Its evidence for “systematic, widespread and grave violations of human rights”” was copious but what might come of it was far from clear. Indeed there rang an ominous silence from Geneva on the subject in the last few months–would the report be condemned to some dusty shelf of a UN backroom whilst the horrors it outlined continued? Absolutely not, according to the Honorable Michael Kirby, chair of the CoI, who spoke on October 17 at a collaborative event held by the Law Faculties of The University of Hong Kong and The Chinese University of Hong Kong.

Mr. Kirby, retired Justice of the High Court of Australia and Honorary Professor of Hong Kong University, spoke about the commission’s findings and, most importantly, what steps the international community could and should take in response. Having spent the best part of a year listening to victims’ accounts of the human rights abuses that routinely occur in North Korea, Kirby made it clear that the international community could no longer allow the North Korean regime and specific members of it, including Kim Jong Un, to quite literally get away with murder (alongside forced abortions, rape, torture, unlawful imprisonment, minority discrimination, etc.).

Serving alongside Kirby on the CoI were Mr. Marzuki Darusman, Special Rapporteur on Human Rights in the DPRK, and Ms. Sonja Biserko, president of the Helsinki Committee for Human Rights in Serbia. The combined experience of the team in courts of law made, as Kirby pointed out, this CoI quite different to previous ones. Firstly, it was carried out in the public eye as much as possible, with witnesses giving live testimonies open for members of the public and press to attend, and which are now available on the CoI website. This was done in part to improve witnesses’ credibility and address accusations of the report lacking authority because the commissioners were denied entry to North Korea to conduct on-the-ground research. A further difference is the report’s legibility. Unlike many UN reports it was intentionally made understandable “to any person of reasonable intelligence,” allowing for wider readership and consequently a greater awareness of North Korea’s human rights atrocities.

Mr. Kirby lucidly explained the process of the CoI and the procedures following its presentation to the UN Human Rights Council, including a so-called “Arria hearing”–an unofficial meeting of the UN Security Council (UNSC), at which members discussed the CoI’s recommendations, including the North Korean regime’s referral to the International Criminal Court (ICC) for crimes against humanity. Or rather, those members that attended discussed it; China and Russia it seems, mysteriously lost the memo. Their absence might be read as evidence that both would veto any attempted resolution on this case but Kirby isn’t so certain. He pointed out that of all the permanent five UNSC members, China has shown the most prudence in veto use, employing it only 10 times compared to the US’s 83, whilst Russia today provides nowhere near as much aid to the DPRK as in previous decades. Further sceptics point out that, even ignoring the glaringly obvious obstacle of a veto, a referral to the ICC would be nigh impossible given that North Korea never signed the Rome Statute that would oblige it to abide by an ICC ruling. However, Kirby notes that in exceptional cases a non-signatory can be brought to the ICC, as happened in the cases of Darfur and Libya. The caveat of course is the requirement of unanimous approval by the permanent five UNSC members including China and Russia.

Regarding the technicalities of prosecution, Kirby noted that in the peculiar case of North Korea, certain loopholes may render it ‘guiltless’ of crimes like genocide, given the term’s strict definition as violence against a group on the grounds of race, nationality, ethnicity or religion. The DPRK regime commits the most horrendous acts of human rights abuse but these are overwhelmingly directed against “enemies of the state” rather than groups defined by the above criteria. Nevertheless, there is “oodles of evidence” as Kirby put it, for crimes against humanity–more than enough to condemn North Korea in the eyes of the world. He firmly asserted that now is “the moment of truth”, an opportunity for the UN to flex its muscles in the name of universal human rights.

Kirby concluded by remarking on a recent “charm offensive” by North Korea which he perceived to have begun, by pure coincidence no doubt, just after the CoI report was released. Whilst officially refusing to recognize the report’s authority and slating its North Korean defector witnesses as “dirty and worthless human scums,” North Korea seems to have taken some (admittedly minute) steps to change its international image. One example is its acceptance of 113 of the 268 recommendations for human rights improvements after its most recent Universal Periodic Review, a review of every UN member state’s human rights record conducted every three years. Whilst it seems laughable to see the above statistic as cause for optimism, it was only in its previous such review that the DPRK, given 187 improvement recommendations, refused to accept a single one–the only nation in the world to do so.

If nothing else then, perhaps the report has indirectly initiated a slow movement towards improved human rights in North Korea. Yet after the copious and horrific evidence obtained by the commission, a prompt and effective response from the UN is imperative. Minor changes may have occurred from within North Korea but it is clear that the only appropriate way to guarantee its citizens their universal human rights is decisive and adequate action by the UN. The report will be presented to the General Assembly later this month, after which it should be sent to the Security Council who will decide whether or not to follow the CoI’s recommendations, including bringing North Korea to the ICC. It is now a case of sitting tight and waiting for an ideal outcome–a less than satisfactory position. But after Kirby’s detailed and considered address I am encouraged that there is at least one white-collar worker with a greater passion for human justice than political maneuvering and who is most unlikely to allow this momentous report to gather dust in a Geneva backroom. So, as Kirby advises, “watch this space.”