The Peninsula

The North Korean Human Rights Conundrum: Moving Forward

By Greg Scarlatoiu

The crimes against humanity and other shocking human rights violations committed by North Korea’s Kim regime have received more attention after the February 2014 report of the UN Commission of Inquiry on human rights in the DPRK. In the 21^st century, North Korea continues to be the only country on the face of the planet that runs a vast gulag system imprisoning 120,000 men, women and children, victimized by what author Mark Helprin once described as a “slow-motion holocaust.” In the 21^st century, the Kim regime continues to classify its citizens based on their perceived degree of loyalty to the regime. In Kim Jong-un’s North Korea, members of three generations of the same family are punished for the supposed trespasses of one relative, pursuant to yeon-jwa-jae, a system of guilt-by-association of feudal extraction. In the 21^st century, the Kim regime continues to hold captive South Korean and foreign nationals abducted by its agents and U.S. citizens sentenced to long years of hard labor on fabricated or grossly exaggerated charges.

Despite the enormity of North Korea’s human rights violations, international attention cannot be taken for granted. While the outpouring of millions of refugees from the Middle East, North Africa, and Western Asia continues, a refugee crisis has been emerging in South Asia. North Korean human rights investigators and activists must continue to compete for attention as massive human rights crises erupt elsewhere. And they continue to worry about the reinstatement of the pre-UN COI predicament, when the Kim regime’s nukes and missiles often out-competed human rights concerns.

North Korea’s nuclear and ballistic missile programs are critical issues, as they threaten regional and international peace and security and endanger the lives of millions. But, under the Kim family regime, North Korea will never give up its nuclear weapons, as they are essential to the regime’s top strategic objectives, i.e. its own survival and the establishment of Kim regime hegemony over the entire Korean peninsula. The Kim regime understands that Middle Eastern despots who gave up their WMDs lost their absolute power, their vast treasure and ultimately their lives. The Kim regime may also have noticed that Ukraine, a newly independent state at the time hoping for market and democratic reforms, gave up almost 200 ICBMs, more than 30 long-range strategic bombers, and about 1,700 nuclear warheads while acceding to the Treaty on Non-Proliferation of Nuclear Weapons. While Ukraine did not have operational control of its nuclear arsenal anyway, its abandonment of nuclear weapons and strategic delivery vehicles through the 1994 Budapest Memorandum on Security Assurances failed to safeguard its territorial integrity. Twenty years after the Budapest accord, part of Ukraine was occupied by the Russian Federation, one of the three nuclear powers that had guaranteed its territorial integrity. The Kim regime has learned from historic precedent. Moreover, every time North Korea engaged in diplomatic interaction over its nuclear weapons and missiles with no intention to abandon their development, that engagement made the regime look strong, internally and externally.

But nations keen on maintaining international peace and security have also learned from historic precedent. As the recent tragedy unfolding throughout the Middle East has taught us, despots committing crimes against their own people are certain to become threats to regional peace and security, especially if they are armed with WMDs and the means to deliver them. Against that background, every time the crimes against humanity and other human rights violations are brought up at the UN or other fora, the legitimacy of the Kim regime is undermined. So, while the focus on nuclear weapons enhances the legitimacy of the regime, focus on human rights undermines it.

The Kim regime cares about its perceived legitimacy, but, in order to maintain its grip on power, it continues to run illicit activities, enslave and exploit its workers at home and abroad, engage in diplomatic deception, threats and aggression against its neighbors, and conduct what author Robert Collins views as a systematic “policy of human rights denial” victimizing the overwhelming majority of its people. Every time human rights is brought up, whatever semblance of legitimacy the Kim regime might retain further dwindles, especially when juxtaposed to free, democratic and prosperous South Korea.

Far from being a nuisance for any past or future diplomatic interaction aimed at dismantling North Korea’s nuclear and missile programs, addressing North Korea’s human rights provides the key to understanding the Kim regime and its motives. One of the most important determinations made by the UN COI is that North Korea can be characterized as a totalitarian state that does not content itself with ensuring the authoritarian rule of a small group of people, but seeks to dominate every aspect of its citizens’ lives and terrorizes them from within. The UN COI found that crimes against humanity and other abysmal human rights violations are at the very core of the North Korean regime’s modus operandi. The COI has characterized North Korea as “a state that does not have any parallel in the contemporary world,” due to the “gravity, scale, and nature of the violations committed” by the North Korean regime

If, at some stage, talks with North Korea resume, human rights must be addressed. But if that happens, the North Korean regime should not expect to be rewarded for mere participation. As unlikely as they may be, steps to address the toughest human rights issue of all, recognizing the existence of political prison camps and granting international access to these unlawful detention facilities, will be an absolute must. Moreover, diplomacy, talks, human rights campaigns and sanctions alike will have to target the right individuals and institutions, those who are truly responsible for devising and implementing North Korea’s policy of human rights denial.

Moving forward, any initiative must be based on a thorough understanding of the evolution and current nature of North Korea’s Kim regime. Since the days of the great famine of the mid to late 1990s, a bottom-up marketization process has emancipated many North Koreans from exclusive dependence on the Public Distribution System (PDS), a tool of ultimate social control. In the process, a post-communist, post-industrial kleptocratic network emerged. Fully subservient to the Kim family, the members of the North Korean kleptocratic network are the enablers of tyranny. The Kim clan requests absolute subservience in exchange for admission to this exclusive club. Far from having been overwhelmed by money and market opportunities, the Songbun system of loyalty-based social classification is alive and well in North Korea. Markets are surely a positive development, but those who ultimately control them must have good Songbun, or at the very least access to those of good Songbun. Through giftpolitik and fearpolitik, the Kim regime ensures that North Korea’s “political marketplace” should not become a cartel, but an absolute criminal takeover of the state by a ruling family that eliminates any threat of new “political entrepreneurship.” The only threat of what Michael Porter refers to in his “Five Forces” as “alternative political structure” the Kim regime faces is South Korea. Efforts to address its human rights violations exacerbate its fear of alternative political structures. Ensuring effective sanctioning of the regime limits its access to the sources of political finance it needs to keep the elites happy.

Moving forward, one must effectively apply all instruments available in the status quo-busting toolkit: diplomatic and civil society pressure centered on North Korean human rights violations; sanctions; bilateral efforts by like-minded states and allies; persuading North Korea’s protectors that aspiring superpowers must not harbor, aid or abet regimes that commit crimes against humanity; and, since true change can come only from the people of North Korea, information campaigns that tell them about the outside world, in particular about South Korea, about the corruption of their leaders, the inner core of the Kim family regime, and about their own human rights situation –  the protection and rights they deserve as human beings.

However unlikely that might be, the Kim regime should be encouraged to consider a gesture of good will that would have no impact on its grip on power and at the same time could restore a little of the credibility it has squandered away over decades of diplomatic deception. That gesture would be the release of American hostages it continues to detain: Kim Dong-chul, imprisoned on fabricated espionage charges; and Otto Warmbier, the UVA student imprisoned for committing alleged “hostile acts” that would amount at best to a fraternity prank in any normal country.

While efforts at the UN will not provide an overnight miracle cure, one has to keep in mind that, despite justified controversy on many other fronts, the UN COI report was perhaps the greatest accomplishment of the UN Human Rights Council. Although the membership of the Council is often not conducive to progress, all 47 member states did establish the UN COI by consensus in 2013, through a resolution that didn’t have to go to a vote. The subsequent report resulted in three strong Human Rights Council resolutions, three firm General Assembly resolutions, and North Korean human rights being placed on the agenda of the Security Council in December 2014, 2015, and 2016. Despite the inherent imperfections of the UN system and the UN Human Rights Council in particular, these efforts must continue. The movement to expose and eliminate North Korean human rights violations has come too far. Withdrawal is not an option, and the UN system is a critical vehicle in this campaign.

Following the UN COI report, the North Korean human rights movement has gained and maintained critical momentum. However, this is not a sweeping victory. The North Korean regime has not even attempted to implement any of the 19 recommendations made by the UN COI. Implementation of Universal Periodic Review and human rights treaty body recommendations has been sporadic and pro forma at best. At the UN, the High Commissioner for Human Rights did establish, in the summer of 2015, a field office in Seoul, as recommended by the UN COI, while the General Assembly and the Human Rights Council have extended and continued country-specific human rights monitoring and reporting mechanisms. But Security Council action is still lacking, although North Korean human rights has been placed on its agenda three times. It is not only the referral of the North Korean case, but also the inclusion of the grave human rights concerns, in addition to nukes and missiles, that is still lacking in the sanctions regime grounded in Security Council resolutions. Advocacy, research, and cross-country programs will be essential in keeping the issue in the crosshairs of like-minded permanent Security Council members, despite anticipated Chinese and Russian hostility.

Moving ahead, all hope would be lost in the absence of a robust U.S.-ROK alliance. The alliance, friendship, and partnership between the two nations is the bedrock of peace, prosperity, freedom, human rights and reunification on the Korean peninsula. In the coming years, openly and effectively supporting Korean reunification will be the only way of resolving the extraordinarily difficult issues we are confronting on the Korean peninsula today: North Korea’s nuclear weapons, missiles, and its abysmal human rights record.

As daunting as that will always be, the United States must seek ways to persuade China and the Russian Federation to ensure proper implementation of sanctions pursuant to UNSC resolutions and U.S. Public Law No. 114-122, the North Korea Sanctions and Policy Enhancement Act of 2016. China can’t transform North Korea, but it can shut it down. All China has to do is sever the Dandong-Shinuiju transportation route, and the North Korean regime will be in trouble. China’s objective has been to ensure stability on the Sino-DPRK border, prevent large refugee inflows, and create some business opportunities in the process. China is not enamored with the Kim Jong-un regime, but continues to regard it as the most desirable political arrangement conducive to its strategic goals in North Korea. China has not changed its fundamental strategic stance toward North Korea as a satellite state, buffer zone, and bargaining chip, but it does have leverage over North Korea.

“Outsourcing” North Korea policy to China cannot be a desirable approach. But, in addition to improving the effectiveness of sanctions implementation, there is one area where China alone can clearly make a difference: the protection and resettlement of North Korean refugees. The United States and its allies must use all available persuasive powers to convince China to cease and desist the forcible repatriation of North Korean refugees. China must abide by its 1951 UN Convention Relating to the Status of Refugees and the 1967 Additional Protocol. North Korean escapees in China are refugees sur place, pursuant to the 1951 Convention, as they face a credible fear of persecution in North Korea, especially if they came across South Koreans or Christian missionaries along the road of defection. They must be granted protection and access to the process leading to acquiring political refugee status. In a December 16 2013 letter the UN COI addressed to China’s ambassador to the UN in Geneva, it warned that Chinese officials who forcibly repatriate North Korean refugees facing a well-founded fear of persecution amounts to aiding and abetting crimes against humanity.

Effective implementation of sanctions will depend not only on Chinese compliance, but also on a solid understanding of the modus operandi of the North Korean regime, its strategic objectives, and the individuals and institutions responsible for its policy of human rights denial. The U.S. State Department and Treasury Department will have to continue to ensure that officials, including senior officials along North Korea’s human rights denial chain of command are identified and included in lists of sanctioned individuals. Treasury rules and procedures are not necessarily the most effective way to address North Korea. They are meant for more or less “regular” sovereign states, but the nature of the Kim regime is very different. The U.S. Government must find ways to effectively apply punitive measures to individuals truly responsible for crimes against humanity in North Korea, without being distracted by the presence of pro forma institutions devoid of any power or influence that just pretend to perform tasks including legislative functions.

UN action will continue to matter. The U.S. Government must continue to support strong resolutions on North Korean human rights, including provisions on crimes against humanity and accountability, at the UN Human Rights Council and the UN General Assembly. Efforts to press for the referral of the North Korean regime to the International Criminal Court (ICC), as recommended in the UN COI report, must also continue. The United States must continue to work with allies South Korea, Japan, the EU and others to strengthen the coalition of like-minded states ready to support strong measures addressing North Korean human rights violations

Coordination with UN Special Rapporteur Tomas Ojea Quintana and also with the UN High Commissioner for Human Rights and the UN High Commissioner for Refugees will be necessary. Efforts must continue to gain access inside North Korea and to conduct site visits on the terms of the UN and possibly U.S. officials involved.

It will be important to pay particular attention to the most vulnerable, in particular North Korean women and children. The investigation of violence and any form of abuse perpetrated against women along the road of defection through China and other third countries must be a priority.

Diplomatic efforts may as well be renewed at some stage, but based on a thorough understanding of the North Korean regime. The agencies involved in bilateral and multilateral negotiations execute policy designed elsewhere within the regime (the Organization and Guidance Department in particular). While unavoidably engaging with pro-forma North Korean agencies and ministries, one must find ways to effectively influence those that are decisive in policy-making (OGD).

North Korea must be pressed to allow internationally acceptable standards of project monitoring and evaluation as well as transparency, as a prerequisite to humanitarian assistance reaching out to the most vulnerable. UN agencies, many of them reliant on significant U.S. contributions, must adopt a Human Rights up Front approach to their humanitarian operations in North Korea. They must be cognizant of human rights issues and apply the findings and recommendations of the UN COI to their work in-country. UN agencies and humanitarian NGOs involved in North Korea should work toward uniform standards of project monitoring and evaluation and transparency, to be adopted across the board by UN agencies, bilateral humanitarian and development agencies as well as private NGOs.

The UN COI was an initiative envisioned, designed, and effectively promoted by civil society. Civil society organizations addressing North Korean human rights in the United States and South Korea in particular need support and resources to continue their work. Creative approaches are needed to encourage the private sector to engage in public-private partnerships, or entirely private initiatives to support such organizations. Information dissemination operations deserve particular attention. Investment is needed in both content and the vehicles of transmission.

Human rights NGOs, including my own, will continue to do what the Kim regime fears the most: finding out and disseminating the truth about its crimes against humanity and other human rights violations. As we move ahead, we need determination, resources, and a concerted effort involving all available vehicles, including action at the UN, sanctions, diplomacy, information campaigns to empower the people inside North Korea and human capacity building programs to empower those who have escaped the country. The North Korean human rights movement has come a long way. Withdrawal or surrender is not an option.

Greg Scarlatoiu is the Executive Director of the Committee for Human Rights in North Korea (HRNK). The views expressed here are his own.

Photo from European Commission DG ECHO’s photostream on flickr Creative Commons.