Jul 4 2017

Accountability for North Korean Human Rights Abuses: Five Questions

By Andrew Wolman*

In the past few years, one deceptively simple concept has come to dominate the international discourse on human rights in North Korea: accountability. The UN Human Rights Council resolution on North Korean human rights emphasized the concept, as did reports by the Commission of Inquiry on Human Rights in the DPRK and the Special Rapporteur on Human Rights in the DPRK, and the concept was the focus of the UN established Group of Independent Experts on Accountability. This emphasis on accountability appears set to continue: the most recent Human Rights Council resolution on North Korea mandates the initiation of a review of information by “experts in legal accountability” in order to develop “possible strategies to be used in any future accountability process”, and advocates implementation of the recommendations of the Group of Independent Experts on Accountability.

At first glance, this focus seems appropriate. Who could oppose accountability for perpetrators of grave human rights abuses, as have been committed in North Korea? We are, after all, living in the “age of accountability”.[i] The International Criminal Court, regional human rights courts and the UN Human Rights Committee have all propagated a “global accountability norm”, or at least have tried to do so.[ii] This focus on accountability, however, brings up important questions that have been insufficiently addressed.

First: what does it mean?  The Independent Group devotes the majority of its analysis to individual criminal accountability, specifically criminal prosecution in North Korea, other countries, or through international or internationalized courts. However, state and institutional accountability have also been addressed by North Korea watchers, and some scholars have defined lustration or truth commissions as accountability mechanisms.[iii] In the North Korean context, one analyst has even defined accountability to encompass helping victims and improving the situation in North Korea.[iv] In short, there is no consensus on a definition of the term. Does this matter? Maybe not, if an elastic concept allows for more creative attempts to address the problem. But without an accepted definition, it will be hard to understand what different actors mean, and how to measure whether particular policies in fact promote accountability or not.

Second: why accountability? Individual accountability is oftentimes discussed as if it were an end in itself. However, without totally discounting the value of retribution, I would argue that legal accountability has primarily instrumental benefits, by furthering other worthwhile objectives. In the North Korean context, these might include deterrence, alleviating victim suffering, establishing the truth about past violations, incentivising good behavior, preventing war, and promoting societal reconciliation. We should be clear about which of these other objectives we really want to further, and if accountability is the best method to do so.

Thus, the third question: how does the quest for accountability affect these other goals? Certainly, if defined as criminal prosecution, accountability would be likely to involve the compilation of information and testimony on human rights abuses, thus furthering the search for truth. Criminal convictions could be expected to provide at least some comfort for victims, whether in the form of reparations, apologies, or simply by fulfilling an expectation of justice. Some observers have argued that the focus on accountability could also have (and indeed may already be having) a deterrence effect.[v] In addition to (possibly) deterring crimes in North Korea, the international community may be incrementally acting to deter crimes by abusive regimes elsewhere in the world by strengthening a global accountability norm.

However, the focus on accountability could also have a detrimental effect on potentially desirable objectives. Most significant, of course, is the question of whether Kim Jong Un and his associates might (at some point) be discouraged from peacefully giving up power due to fear that they would immediately be held accountable – and thrown in jail – once they stepped down. The focus on accountability could also distract attention from other approaches that could potentially reach desirable human rights goals, such as negotiation.

Fourth, how do we achieve accountability? This question has been the focus of most analysis so far, but there are no easy answers.[vi] International criminal prosecution seems unrealistic, due largely to the Chinese Security Council veto. Domestic prosecution within North Korea is utterly implausible, and prosecution in other countries using (for example) universal jurisdiction seems impractical as well, in part because regime leaders seldom travel abroad. Of course, accountability can be furthered through the collection of evidence for post-transitional prosecutions. But if that is all the international community can do, then the focus on accountability is nothing new: human rights activists, state entities, and the UN have been investigating North Korean human rights abuses for years, and the regime’s crimes are well documented.

And fifth: is this the right time to address accountability? One issue is that North Koreans themselves – the primary victims of the regime’s abuses – are not yet in the position to influence decisions that are being made about their future. However, the UN itself advocates for the “centrality of victims” to the design and implementation of transitional justice programs. Of course, one can ask North Korean escapees, but, as is often the case with exile communities, the escapees are not representative in terms of geographic origin, gender, or political views, and their views should not be taken as identical to those of the millions of other victims still in the country.

Another issue is the uncertainty as to the proper time for engaging in different transitional justice mechanisms. Some scholars argue that an early focus on reconciliation followed by later moves towards accountability leads to more stable transitions.[vii] In any case, the optimal timing is likely to depend on important unknown factors, such as whether unification will quickly succeed the Kim regime’s fall, whether the current regime leaves power voluntarily, and what role China will play in the process. Given these uncertainties, hasty decision-making may be counter-productive.[viii]

This post is by no means intended to show that accountability is undesirable. Any observer with a sense of justice would wish to see Kim and his henchmen in prison. But accountability is not necessarily an uncomplicated objective, nor the sole appropriate focus for the international community. It should be debated and justified, and not accepted uncritically.

[i] Francesca Lessa & Leigh Payne (eds). 2012. Amnesty in the Age of Human Rights Accountability (Cambridge).

[ii] Louise Mallinder. “Amnesties’ Challenge to the Global Accountability Norm”, in Francesca Lessa & Leigh Payne (eds). 2012. Amnesty in the Age of Human Rights Accountability (Cambridge).

[iii] Lizzie Buehler. 2016. The Future of Accountability in North Korea. 4 July. Daily NK. http://dailynk.com/english/m/read.php?num=13973&cataId=nk02501; Cynthia Horne. 2017. Building Trust and Democracy: Transitional Justice in Post-Communist Countries (Oxford); Carlos Fernandez Torne. 2015. “Truth Commissions and the Accountability Relationships they Generate: A New Framework to Evaluate their Impact”. Asian Journal of Peacebuilding, 3(2): 233-251.

[iv] European Parliament. Directorate General for External Policies. 2016. Human Rights in North Korea: Accountability v. Engagement. http://www.europarl.europa.eu/RegData/etudes/IDAN/2016/578004/EXPO_IDA(2016)578004_EN.pdf.

[v] Roberta Cohen. 2015. “Human Rights and Humanitarian Planning for Crisis in North Korea”. International Journal of Korean Studies. https://www.brookings.edu/wp-content/uploads/2016/07/Roberta-Cohen-NK-art-reunification.pdf; Oknam Yi & David Sungjae Hong. 2013. “Start Thinking Now About Transitional Justice in a Post-Transition North Korea”. 11 July. PacNet: 51.

[vi] Michael Kirby, 2016. “North Korea and our Dilemma: How to Secure Accountability for Crimes against Humanity by a Recalcitrant Nuclear State”. Speech at University of Chicago Law School. March 29; Buehler (n 3).

[vii] Tricia Olsen, et al. 2010. Transitional Justice in Balance. USIP Books; Laurel Fletcher & Harvey Weinstein. 2009. “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective”. Human Rights Quarterly, 31: 163-220.

[viii] Fletcher & Weinstein (n 7).

*Andrew Wolman is a professor of human rights and international law at the Graduate School of International and Area Studies at Hankuk University of Foreign Studies, in Seoul, Korea, and a member of the Law and Development Research Group at the University of Antwerp Faculty of Law.

 

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