The Inaugural Fred Iklé Lecture Featuring Justice Michael Kirby and Roberta Cohen

CENTER FOR STRATEGIC & INTERNATIONAL STUDIES

WASHINGTON D.C.

FEBRUARY 19, 2016

NORTH KOREA: THE HUMAN RIGHTS AND SECURITY NEXUS

INAUGURAL FRED IKLÉ MEMORIAL LECTURE


INTRODUCTION TO THE INAUGURAL FRED IKLÉ LECTURE
By Roberta Cohen, Co-Chair Emeritus, HRNK

It gives me great pleasure to introduce the first Fred Iklé Lecture sponsored by the Committee for Human Rights in North Korea (HRNK). This lecture is to become an annual HRNK event to honor Fred Iklé as principal founder and intellectual architect of our organization and its first chair. When HRNK was established in 2001, Dr. Iklé was well known as a defense and foreign policy specialist and a nuclear strategist. But what was not so well known was his passionate interest in promoting democracy and human rights in countries where people were closed off from their basic freedoms–in particular North Korea. He was one of the first to recognize that because North Korea was so isolated, a research and advocacy organization was needed to document the human rights situation and draw international attention to it. As Chair, he kept HRNK focused and steered a tight ship. HRNK went on to produce groundbreaking reports on North Korea’s prison camps, the plight of refugees, and the devastating famine. He saw the linkage between human rights deprivation and peace and security, which was recalled in a eulogy by NED President Carl Gershman, another distinguished co-founder of HRNK. 


Further, Dr. Iklé recognized the importance of broad based bi-partisan support to strengthen undertakings on human rights in North Korea. In founding HRNK, he initially joined hands with Stephen Solarz, a well-known former Democratic Congressman who had visited North Korea and later became Co-chair of our committee. The cultivation of a broad spectrum of political support has contributed immensely to HRNK’s effectiveness. 

There could be no better fit for HRNK’s first Fred Iklé Lecture than the HONORABLE MICHAEL KIRBY, who has mobilized world attention to a situation that shocks all our consciences but has gone on for more than 50 years. When Michael Kirby was chosen in 2013 to chair the United Nations Commission of Inquiry (COI) on the human rights situation in North Korea, we knew that he had been a justice of the High Court of Australia for thirteen years with a distinguished legal career. We also learned that he was nicknamed “the Great Dissenter” because he had the character and integrity to give a record number of dissenting opinions before the High Court. And he served as chancellor of Macquarie University for nine years. 

Nonetheless, we were not prepared for the incredibly bold and outspoken role he played internationally and the readiness to debate the North Korean delegates at the UN, who for the first time felt challenged to come forward in response. And he took on China’s illegal and cruel practice of forced repatriation of North Korean refugees. The influence of his personality reinforced by the COI’s formidable 400-page report–produced in less than a year–led to strong General Assembly resolutions, changes in policies on the part of a number of governments, Security Council action, and an energizing of the NGO and think tank communities. Remember that the UN has many commissions, rapporteurs, and committees that monitor human rights. Justice Kirby’s powerful eloquence on behalf of the people of North Korea, his insistence on public hearings so that survivors could speak, and the vigorousness of the legal research leading to the finding of crimes against humanity made him and the COI on North Korea stand out in an unparalleled way. 

A final word which allows me to end on a lighter note. Michael Kirby has a wise and wonderful sense of humor. A few years ago, I was handling his schedule in Washington which was ever changing with appointments being juggled around among government offices, think tanks, and universities. So I must have expressed some frustration because Michael wrote me that everything done so far was good. But he advised, and I quote, “Roberta, Stay calm. Think of Churchill in the Whitehall bunker during the Battle of Britain when Britain stood (almost) alone (except for the Dominions and FDR!).” Michael, your email is pasted on my desk. So without further ado, let us now turn to the man of the hour, The Honorable Michael Kirby.


SECURITY AND HUMAN RIGHTS IN NORTH KOREA – AND THE POWER OF PARADOXICAL THINKING*

The Hon. Michael Kirby AC CMG**


I. WORLDS APART

Until recently, the dangers for international peace and security occasioned by the Democratic People’s Republic of Korea (DPRK) (North Korea) were generally regarded as a topic separate from the grave abuses of the human rights, occasioned to the people of that country. 

The institutions of the international community that tended to address each topic were different.  International peace and security was substantially the concern of the United Nations Security Council.[1]  Attention to questions of human rights rarely troubled the Security Council; although this was beginning to change.[2]  Concerns about human rights, either globally by reference to specified topics or as occurring in individual member countries of the United Nations, tended to be addressed, if at all, in the General Assembly, the Human Rights Council, and specialised agencies such as the Office of the High Commissioner for Human Rights (OHCHR). 

Although there was an obvious overlap, because affronts to human rights can sometimes be a cause of challenges to security and because dangers to peace and security (particularly in the use of nuclear weapons) can profoundly affect fundamental human rights, it was normally the practice to keep the topics apart.  Debates over the human rights situation in nation states were often highly emotional and controversial–creating an atmosphere considered unconducive to the peaceful resolution of international disputes. 

The expertise in strategic and military studies was also commonly seen as distinct from expertise about universal human rights.  Security analysts were prone to look at human rights advocates as idealistic, unrealistic, and resistant to the compromises considered essential to prevent or settle major disputes between nations.  Talk about human rights tended to get in the way of the cool analysis essential to reduce the dangers of war and to uphold the fragile security of nations and regions.  On the other hand, human rights experts commonly regarded those with expertise on security and strategic studies as unacceptably indifferent to the shocking burdens imposed on human lives and suffering by oppressive states.  They reminded experts in military and strategic studies of the fact that the Charter of the United Nations itself grew out of the experience of the great wars, which shared in common the breakdown of international peace and security; but also the revelation of grave crimes against humanity, genocide, war crimes, and humanitarian crises.[3]  

Fred Iklé, whom we honour in this memorial lecture, was a notable expert in strategic studies, military deployment, and security decisions at a high level in his adopted country, the United States of America.  Yet, from his early days, he was highly sensitive to the relevance of decisions made in those fields for the human rights of the people affected, and vice versa.  He displayed a capacity to think paradoxically: retaining in his mind at the same time ideas that many would have seen as contradictory and mutually incompatible. 

My thesis is that we need the power of paradoxical thinking to confront effectively the new and enlarged security dangers presented by the DPRK to its neighbours and the planet, if we are safely and justly to navigate our way through the new and increased dangers to the human rights challenges presented by the DPRK.  Like Cesar’s Gaul, my lecture will be divided into three parts.  First, I will describe the distinguished career of Fred Iklé for it is relevant to my thesis.  Secondly, I will explain the background to the new and enlarged dangers presented to the world by the DPRK’s recent military and human rights postures.  Thirdly, I will seek to bring out from these materials ten propositions to guide us as we grapple with the present challenges.  Some of these propositions will undoubtedly appear to be paradoxical and mutually inconsistent.  However, learning from Fred Iklé, we should be unconcerned that this might be so.  We should open our minds to the power of the paradox.


I.                FRED IKLÉ: A PARADOX

The life of Fred Iklé was covered in many places when the news of his death on November 10, 2001 became known.[4]

He was born on August 21, 1924 in Engadin, Switzerland and named Fritz Karl Iklé.  He trained to be an academic sociologist.  The dangers of neighbouring countries and the remarkable developments in the weapons of war were kept at bay from his childhood by Swiss neutrality.  However, his own experience and circumstances inculcated a fascination with the technology of war and with the difficulties thereby presented of controlling its outcomes. Those outcomes were increasingly linked to scientific developments rather than rational considerations or issues of justice.  This reality was brought home to him in the ultimate way in which the Second World War ended abruptly, following the explosion of nuclear weapons over Hiroshima and Nagasaki in Japan.  That phenomenon posed the question: what would have happened if the Axis powers had won the race to develop nuclear weapons?  What, if anything, could be done to safeguard humanity against such possiblitiles? What, if anything, would ensure that good in international affairs necessarily triumphed over evil?

In 1946, at the age of 22, Iklé came to the United States to undertake his Masters and PhD degrees at the University of Chicago.  His doctoral thesis examined an issue that was already highly controversial, namely the ‘social impact of bomb destruction.’  Specifically, he studied and assessed the impact of carpet bombing by the Allies over Dresden, Germany and the impact of the use of the final atomic bomb in Nagasaki in August 1946.  As someone who lived through those immediate post-war years, when the world was exhausted from war, I can aver how two great themes were burned into human consciousness even amongst children at that time. These were the discovery of the destructiveness of modern wars for human life with the grave human rights violations that coincided with the war’s termination; and the fear of atomic weapons: symbolised in the unforgettable mushroom cloud. 

These considerations profoundly affected the design on the new United Nations Organisation.  They revealed the astonishing cruelty to which human beings were prone.  They also disclosed the grave dangers to peace and security presented by technology, armaments, and bombing–especially the use of nuclear weapons.  Iklé was profoundly affected by all of these dominant ideas.

By the 1960s, he had been appointed a professor at the Massachusetts Institute of Technology.  Drawing here on his doctoral thesis, he was highly critical of the huge accumulation of nuclear weapons by the combatants in the Cold War.  Specifically, he criticised the principle of ‘mutually assured destruction,’ advanced by many at the time as the only sure way to ensure that nuclear weapons would never be used.  For Iklé, that strategy posited the possibility of potential crimes against civilian populations that were contrary to old and established principles of international law.  They also made no allowance for the risks of error, mistake and accident that could trigger a nuclear catastrophe. 

In 1970 Iklé moved to Harvard University where he met Henry Kissinger, then National Security Advisor to President Nixon.  At Kissinger’s instigation, Iklé moved again to Washington to join the Nixon (later Ford) Administrations as Director of Arms Control of the U.S. Arms Control and Disarmament Agency. The very title of that agency captured the paradoxical opinions that were formulating in Iklé’s mind: the vital necessity of arms.  But the equal importance of controlling them and working towards practical moves for their elimination by disarmament.

During this period Iklé also came to know Governor Ronald Reagan, already an aspirant for the presidency.  In the 1980s he became an advisor to the Reagan Administration.  Specifically, he addressed the Russian-led war against the Taliban and other rebels in Afghanistan.  He urged the provision of sophisticated United States armaments to the rebels.  This was at first vetoed by the Central Intelligence Agency.  However, eventually that veto was lifted.  The weapons contributed to the Russian defeat and the Soviet withdrawal from Afghanistan.  Still they left a resurgent force of well-armed religious fundamentalists who would later prove a large menace to the United States and to the peace and security of the world.

In 1987, Iklé reflected his generally conservative stance on political questions by being one of the early signatories to the Project for a New American Century: a document viewed by many as the Neocon charter.  When George W. Bush became President of the United States in 2000, Iklé was invited back into government as a member of the Defense Policy Board under Defense Secretary Donald Rumsfeld.  Soon after, he became Commissioner of the National Commission on Terrorism and a director of the National Endowment for Democracy.  In 2003, he supported President George W. Bush’s decision to invade Iraq.  However, he was later to recant that support, concluding that, in some ways, the conditions in Iraq, and their dangers to the United States and the West, were even greater than the dangers that had been presented by Saddam Hussein.

In 2006, Iklé wrote a book that signalled the turn-around in his thinking.  It was Annihilation From Within.  It was a text critical of the U.S.-led ‘war on terror.’[5]  His incisive expression; his willingness to change his mind and to admit error; and his attention to practical details constituted the hallmarks of his writing.[6]  His book on international negotiation became a standard text for training diplomats, not only in the United States.

In 2006, he joined, as a distinguished scholar, the Center for Strategic and International Studies in Washington.  By this time, he had also taken part as a co-founder of the Committee for Human Rights in North Korea (HRNK), a civil society organisation that was explicitly concerned about the reports of grave human rights offences seeping out of that highly secretive country.  He never ceased to re-examine his own assumptions, even basic assumptions. As another co-founder of HRNK, Carl Gershman, remarked at the time of Iklé’s death:[7]

"[Fred] brought his prestige as a defense strategist to this effort [the founding of HRNK], declaring when the new group was announced [in 2001] that the security and disarmament problems that had topped the US agenda in dealing with North Korea could not be solved as long as North Korea remained 'such a tightly closed totalitarian state.' In the end, Fred said, 'democracy and the rule of law, desirable in and of themselves, are also a guarantee of peace and security.' This statement, of course, summed up Fred's thinking more generally on international security." 

Thus, Iklé was not an uncritical Cold War warrior or apologist for the Right.  From the choice of his doctoral thesis to the end of his life, he understood that there were two sides to the coin of a stable new world order.  Peace and security reinforced by universal human rights and the rule of law: both at home and in the international sphere.[8]  Without these reinforcements of stability, predictability, and mutual respect, security would be an illusory pipedream. The human mind had to struggle to retain paradoxical thoughts together at the one time.[9]

It was because of his capacity to embrace new thinking, outside the limits of the stereotypes, that Fred Iklé won many friends and many laurels.  He was awarded the Distinguished Public Service Medal of the U.S. Department of Defense in 1975.  To this, the Bronze Palm was added in 1985. The National Endowment for Democracy awarded him its Democratic Service Medal.  On his death, he was survived by his widow and two daughters.  His widow has since died but his daughter Miriam has joined in this occasion to witness the respect felt for her father in those circles concerned with the human rights record of North Korea.  For Iklé, that record underpinned and helped to explain the security dangers.  They could not be resolved without attention to both sides of the coin.

II.             HUMAN RIGHTS IN NORTH KOREA IN CONTEXT

Fred Iklé brought with him to the United States a European’s understanding that the international dangers to peace and security are not ordinarily to be found only in the interstices of the contemporary 24-hour news cycle.  They are to be found in a deep reflection upon history, including ancient history.  It is there that the causes of conflict and danger can often be found.  When, in faraway Australia, in high school, I undertook studies on the causes of the Second World War, my teacher directed our minds to a poem from Ancient Greece describing the causes of one of the Peloponnesian wars.[10]  It shows how, basically, little has changed in human conflict and motivation.  But the weapons of cruelty have certainly changed.

Of revolutions and intrigues,
The war its causes cause and crime,
The ups and downs of pacts and leagues,
And wounds as yet unhealed by time,
These are the themes you treat, who dare,
A course which many a heart dismays,
To turn hot ashes which may flare,
At any moment to a blaze.

In March 2013, the UN Human Rights Council (HRC) established a Commission of Inquiry (COI) on human rights in the DPRK.[11]  Unusually, the COI was established without a call for a vote. The HRC resolution mandated the COI to investigate the systematic, widespread and grave violations of human rights in the DPRK, with a view to ensuring full accountability, in particular for violations that might amount to crimes against humanity.[12] 

In May 2013, the President of the HRC appointed Sonja Biserko of Serbia and me to the COI, joining Marzuki Darusman, a member ex-officio.  He already held office as Special Rapporteur on human rights in the DPRK.  I was designated to chair the COI on the DPRK.  The resulting report was released in February 2014.[13]  It addressed the nine point mandate received by the COI.  The report was delivered on time, within budget, and unanimously.  In doing so, the COI embraced many innovations in its methodology: most especially the use of public hearings, with testimony, transcript, and other materials placed online and shared with the international community and media.[14]

To understand the divided Korean peninsula today, the COI considered it was essential to give a historical background.[15]  For more than a thousand years, history records organised human societies in Korea.  Because of its geographic position, the peninsula was frequently the subject of interventions, sweeping its exposed territory from the respective directions of China and Japan.  This provided a source both for the cultural roots of the Korean land and people, but also the origin for local attitudes, hostility, fears, and perceived security risks.  The invasions from China brought industrialisation, but also a deep wellspring of Confucian social values and attitudes. The invasions from Japan brought deep animosities, cultural memories, and some autocratic habits, including in the forms of torture of suspected enemies and the worship of the designated leader. 

In 1876, the resurgent Meiji Empire of Japan imposed, by force, an unequal treaty on the Korean Empire.  In 1910, fresh from its defeat of Russia, Japan invaded Korea and imposed a harsh colonial regime.  Independence movements were ruthlessly suppressed.  In the centre of Seoul is a former Japanese prison for Korean dissidents.  Displayed there are the continuing means of torture that were recounted in evidence given by several witnesses from the DPRK.[16] 

In 1943, as the tide of the Second World War turned in favour of the Allies, their leaders met in Cairo to consider the likely post-war situation.  The United States toyed with the idea of mandate-like arrangements for Korea, once released from Japanese rule.  This was subsequently changed to specification of ‘spheres of influence.’  The Soviet Union, which did not enter the war against Japan until just before its conclusion, was assigned the northern section of the peninsula.  The southern section was assigned to the United States, below an artificial line drawn close to the median point.  In every way, the division was artificial.  It was not self-determination by the Korean people of their post-colonial political future.  It severed the unity of the governance of the Korean people.  The actual division was drawn on a map by a middle ranking U.S. official, Dean Rusk, later to be Secretary of State.  He had no actual familiarity with Korea, its geography, or people. 

Each of the successor states, the DPRK in the north and the Republic of Korea (ROK) (South Korea) in the south, began with autocratic regimes that reflected the animosities of the Cold War.  Militaristic autocracy was to be a feature of the peninsula for most of the supervening years.  By 1949, Kim Il-sung had emerged as the uncontested Supreme Leader in the north.  He yearned for a fight to ‘liberate’ the south.  On 25 June 1950, the Korean War was initiated by the DPRK.  However, seizing advantage of the temporary absence of the Soviet Union from the Security Council,[17] the United Nations resolved to authorise a defence of the ROK.  The UN Force repelled the invading force from the DPRK.  But this attracted a huge intrusion of Chinese ‘volunteers.’  They ultimately drove the UN Forces back, effectively to the original demarcation line. 

The sufferings on both sides of the Korean War were enormous.[18]  Most Korean families had experience of lost or severely injured family members.  The memories of the suffering have proved indelible on both sides.  There has never been a peace settlement; merely an armistice.  Technically, the two Korean states are still at war.  The hostility between them, and the animosity of attitudes and propaganda, have been poisonous on both sides. 

An attempt to begin afresh the relationships between the two Korean states followed the election of a great liberal leader as President of the ROK: Kim Dae-Jung.  He espoused a ‘Sunshine’ policy.  He sought to tap the deep desires of ordinary people on both sides of the demilitarised zone, for restored relationships and eventual reunification of the Korean peninsula.  He visited Pyongyang in 2000.  In 2005, Six-Party Talks were initiated on the basis of a pledge that the DPRK would abandon all nuclear weapons and existing nuclear programs.  It agreed to do this in return for support in establishing stable energy supplies for the North.  There are differences of view about what next happened.  However, the objective fact is that the DPRK reneged on its non-nuclear pledge; recommenced a nuclear energy program incidental to developing atomic weapons; and created a dangerous and destabilising military potential that triggered deep anxiety and military responses on the part of the ROK and its military ally, the United States.

There followed three (underground) atomic weapons tests: in 2006, 2009 and 2013.  By the time of the third test, in December 2013, the second dynastic ruler of the DPRK, Kim Jong-il, had died.  His son, Kim Jong-un, aged about 30, succeeded to the military, party, and effective state leadership of the DPRK.  However, his rule introduced features of greater danger.  Not only did he retain the huge army, constituting the fifth largest standing military force in the world.  He immediately authorised the third atomic test in 2013.  And he introduced a series of executions of high-level leaders of the DPRK, including, in December 2013, Jang Song-thaek, his uncle by marriage. Until his sudden humiliation, removal, military trial, and execution, Jang had been described as the ‘control tower,’ accepted to guide Kim Jong-un.[19] This and other violent acts indicated potential elements of instability in the DPRK.  These were the more concerning because of the youth and inexperience of the new leader; his rejection of the prudent voices that had gathered around his father; and his willingness to explore still newer weapons.  These included the testing of missile systems, potentially to carry nuclear devices; the conduct of a fourth underground test, allegedly of a hydrogen weapon; and the reported testing of a submarine launch of a missile that could enlarge still further the risks presented by the enhanced weaponry of the DPRK. 

As these dangerous developments unfolded, the COI played out its role in the Korean drama, but with its focus fixed always on the principles of universal human rights as required by its mandate.  The commissioners met for the first time in July 2013.  In accordance with the distinctive methodology that they had agreed, they conducted public hearings in Seoul, Tokyo, London, and Washington in September and October 2013.  They had no difficulty in gathering substantial testimony of grave human rights abuses.  Available for both public and private hearings was a huge number of refugees who had fled the DPRK: particularly during the grave famine (“arduous march”) of the mid-1990s.  These witnesses told stories of enormous suffering, cruel brutality, shocking discrimination against women and suspected political or religious opponents, severe restrictions on basic civil rights, and the beginnings of a reaction to these horrors on the part of the people of the DPRK.  Those reactions included the establishment of rudimentary markets in some towns; the protest against an attempted currency ‘reform;’ and the exodus of thousands of DPRK citizens to China, searching for a better life, promised stability, and predictability. 

Although access to the internet was prohibited to ordinary citizens in the DPRK, availability of an intranet gradually opened up potential access to global media, including television dramas from the ROK that confirmed the widespread rumours that life in South Korea was prosperous and infinitely freer than in the north.  These were the circumstances in the DPRK by the time the United Nations’ COI delivered its report on 17 February 2014. 

A month later, on 17 March 2014 the report was formally presented by my colleagues and me to the Human Rights Council in Geneva.  Because virtually every page of the report contained extracts from the testimony of witnesses, speaking directly to the international community, it caused a sensation.  It attracted very high votes in favour of the report and its recommendations both in the HRC and in the General Assembly, to which the report was duly referred.  On 17 April 2014, on the initiative of France, an Arria briefing was given on the content of the report to those members of the Security Council who chose to attend.  Only China and the Russian Federation absented themselves from this briefing.  The latter called on the COI, in advance of the Arria briefing, to explain that its absence was not a reflection on the actual findings of the COI but because of the objection of Russia to country specific mandates from the HRC.

Informed by the Arria briefing, steps were then taken to assemble a procedural motion in the Security Council.  Exceptionally, this brought the situation of human rights in the DPRK before a meeting of the Security Council held on 22 December 2014.  Under the Charter of the United Nations, procedural votes are not subject to the veto of permanent members, but they still require the support of at least 10 members of the Council.[20]  The opposition of China and the Russian Federation caused the Security Council to delay its consideration of a central recommendation of the COI that the human rights situation in the DPRK should be referred to the International Criminal Court (ICC). A year after the first procedural resolution was adopted, on 10 December 2015 (Human Rights Day), despite the election of new non-permanent members in the interim, the Security Council once again agreed to place the human rights situation in the DPRK on its agenda.  It thereby accepted and endorsed the interconnection of human rights and international peace and security.

Speaking in her capacity as the representative of the United States, the President of the Council in December 2015, Ambassador Samantha Power, said:[21]

“The situation in the DPRK is now an item on the Security Council’s seizure list.  Given that the DPRK continues to carry out these widespread and systematic human rights violations, inflicting immeasurable suffering on the North Korea people, and given the ongoing threat posed by DPRK to international peace and security, the reasons for the Council meeting on the situation in the DPRK persist.  For as long as this situation in the DPRK remains unchanged, this Council should continue to hear briefings about, and engage in debates on, the human rights situation in the DPRK in this chamber.

The adoption by the Security Council of the procedural resolutions reaffirms the ongoing superintendence of the human rights situation in the DPRK by the Council.  However, the UN Under-Secretary-General, Mr. Jeffrey Feltman, in his remarks in 2015, stressed the need for “efforts to engage the Government of the DPRK to improve the human rights situation in the country [which] must go hand in hand with efforts to hold perpetrators of crimes accountable.” He also acknowledged:[22]

“The international community is yet to find and agree on an effective way to address the serious rights concerns raised by the report of the Commission of Inquiry, and how to bring about positive and lasting change for the North Korean people.  Particular challenges have been posed on how to balance calls for accountability and focus on security matters and the need for engagement and dialogue.”

Far from the DPRK responding to the concerns and admonishment of the international community, by engagement with its institutions and compliance with previous Security Council resolutions on sanctions, the DPRK proceeded to an escalation of the grave dangers involved in the maintenance of its huge standing army; the conduct of a fourth underground nuclear weapon test (allegedly a hydrogen bomb); the conduct of a submarine to air missile test; and the undertaking of a long-range missile test of military potential.  Obviously, these were deliberate and provocative actions, pursued intentionally and in violation of earlier Security Council resolutions. 

What can the international community do to assert its will, to protect itself and the people of North Korea, whose government fails to do so? How can the global community uphold international peace and security in such a dangerous environment?

III.           TEN PARADOXICAL STRATEGIES


These are times for principled thinking, but also fresh thinking, on how to handle the dual challenges to peace and security and human rights presented to the world by the DPRK.  My skills are narrower than those of Fred Iklé, being in the fields of law and international human rights.  Those skills can sometimes be an impediment to major breakthroughs for peace and security but that does not make them illegitimate. 

An earlier such fresh approach was the initiative of the ROK, thirty years ago, to embrace the broad features of parliamentary democracy, the rule of law, and economic liberalism.  This challenge helped to build a society in South Korea which is far more attractive to knowledgeable Korean citizens than the threadbare absolute monarchy of the DPRK, with its grinding poverty, recurring famines, obsessive secrecy, totalitarian rule, and detention camps.  Another effort at fresh thinking was that offered by Kim Dae-Jung’s ‘Sunshine Policy.’  In the result, it did not succeed, as most observers hoped it would.  But at least the attempt was made.  As several participants have explained, there are no ‘quick fixes’ to the challenge of the DPRK.  That challenge is no longer a ‘fringe issue.’  It lies at the heart of contemporary global security concerns. ‘Business as usual’ is no longer a viable option so far as the DPRK is concerned.  The risks of mistakes, accidents, and unpredictable chance events are too great.  The dangers to nations, peoples, and the entire biosphere are real.  They cannot be ignored.


Three recent images bring the current realities to our minds:



*      In the DPRK, the signs of rejoicing on the streets are vividly recalled, as the emotional television presenter announced the fourth bomb test and the subsequent missile launch;
*      In the United States, the somber faces of the legislators who came together, across party lines, to adopt the North Korea Sanctions and Policy Enhancement Act of 2016 (U.S.) reflected the unanimous or near unanimous support in both Houses of the Congress.  With one voice the senators and representatives set out to tighten the web of sanctions, designed to achieve “an overall policy to denuclearize North Korea and promote human rights within the country.”[23]  At a time of very deep political divisions in the United States, President Barack Obama endorsed this signal of unified resolve by signing the measure into law.  It is now operating to impose new and stronger sanctions and strategies in respect of the DPRK, its leaders, and people; and
*      In the ROK, the government abruptly cancelled cooperation with the DPRK in the Kaesong Industrial Zone.  It declared that the income from the zone had been used by the DPRK to finance its nuclear and missile programs.  A day later, the DPRK froze all Kaesong assets, expelled all nationals of the ROK from the zone, and declared the zone a military security area.  Inevitably, this action dismantled the effective Trojan horse that the efficient, clean, and prosperous factories in Kaesong had presented to the 50,000 Kaesong workers, to be spread as an idea throughout the DPRK.[24]  Whatever the competing arguments, the ROK had clearly concluded that its exposure to increased risks from the DPRK required resolute action.  Inaction or turning the other cheek was not a sufficient response.  A signal had to be sent, including a signal to the DPRK’s protector, China. 

Given that China is the only country with major trading and economic relations with the DPRK, and potential influence over its actions, it remains a key to achieving progress on the human rights and security issues.  But given the recent history of China, and its own current regional strategies, is there any hope for change?  What can the international community do to promote new initiatives?  What strategies or combination of strategies present any possibility of promoting change? Given the unacceptability and dangers of military intervention, what can be done specifically to improve the human rights of the people of the DPRK at this present juncture?  Is hope of change unrealistic?  Or, paradoxically, is the present time propitious for change in the DPRK?

1.         UN Initiatives 
The mandate of the COI has been discharged.  The COI has no continuing existence.  The members of the COI rejected suggestions that they should continue in office.  They wanted to make the point that, the report being provided to the United Nations, it was up to the nation states to respond as their legal duty demanded.[25]  

The term of the second Special Rapporteur, Marzuki Darusman, will shortly expire.  It will be important to fill the vacancy caused by his retirement without delay.  I pay tribute to the outgoing SR for the excellence, persistence, and creative imagination of his reports.  He and his predecessor (Professor Vitit Muntarbhorn of Thailand) have demonstrated the qualities of mind and courage that are essential to this frustrating task.  Despite so many discouragements, the HRC must persist with a SR.  In his last report, SR Darusman proposed that a “committee of experts” should be established to explore, beyond the efforts of the COI, the present state of international law and the prevailing state practices on accountability.[26] He recommended that “creative and practical mechanisms of accountability that are most effective in securing truth and justice for the victims of crimes against humanity in the [DPRK],” should constitute the mandate of the new expert committee.  Some concern has been expressed that the COI has already fully explored the remedies available. [27]  However, it did so under a tight deadline.  A new committee might produce fresh options.  It would maintain the commitment of the United Nations, to mobilise the international community to protect the human rights of DPRK nationals. It would signal an unwavering determination to that end.  Given appropriate timing, it need not cut across the mandate and responsibilities of the new SR when appointed. 

2.     Publicity for the COI Report
Preparing a report is not the end of the mission of a UN COI.  It is only the beginning for follow-up action.  Much international news media on the DPRK seems content to emphasise the peculiar or humorous features seen in the DPRK and its society.  However, as the COI report discloses, the DPRK is no joke for the people vulnerable to its rule.  An antidote to the isolation, and to the denial of access to modern communications in the DPRK, would be the widespread distribution of the DPRK report, including in the Korean language.  Top priority should be given to this objective.  Likewise, distribution of the full report, in hardback and in an attractive format, should be a priority UN initiative.  The UN is successful in organising COIs.  It is less successful in promoting awareness of their findings.  The present impediments placed in the way of translations of the report into the Korean and Chinese languages should be immediately removed by the OHCHR.  As much attention should be addressed to publicity for the COI report as to the enforcement of policies on archiving immaterial documents which the OHCHR certainly enforces. The new attitude to transparency, demonstrated by the COI on the DPRK during its operations, should spill over into the approach of the OHCHR to promoting worldwide awareness of the COI findings and recommendations.  Awareness of these assists in maintaining and increasing the direct perception of the DPRK as a “rogue state.”[28]  This enhances continuously strong votes, at all levels of the United Nations, in support of the passage of resolutions on human rights in the DPRK.  This sends the clearest signals to the DPRK that it must change its ways if it is to engage with the world community.  It was not obliged to join the United Nations.  Having done so (and having ratified several human rights treaties), it is obliged to conform to the requirements of the treaties and answer for compliance to the organs of the United Nations.

3.     Engagement with China
In the discharge of its mandate, the COI took great pains to engage with China.  The COI’s actions and correspondence with representatives of the PRC are described in the COI report.[29]  China itself must necessarily have concerns about the nuclear weapons and missile developments of the DPRK, with which it shares geographic contiguity, ecological connection, and shared dangers.  National responses, in the organs of the United Nations, suggest the potential for finding common ground in the shared concerns over the DPRK’s weapons developments.  China is a great nation.  Its recent economic and other progress has been astonishing.  It is also a permanent member of the Security Council, with the special responsibilities that go with that position and with its privileges.  During the debate on December 10, 2015 in the Security Council, the Chinese Ambassador stated that the DPRK was no danger to peace and security.  Subsequent events constitute an affront by the DPRK to China by making the latter’s assertions and judgment appear naive and foolish.  China shares with other countries common responsibilities to apply pressure on the DPRK, both to change its armaments policies and to reduce its human rights defiance.[30]  The existence of the shared interests of humanity and concern over the dangers inherent in the present situation may, paradoxically, bring about a degree of consensus which includes China.  Propinquity, including in the chamber of the Security Council, is sometimes an encouragement to exploring and finding common ground.

4.         Outreach to Koreans: ROK 
The OHCHR should explore outreach to the individuals and community groups concerned about the state of human rights in the DPRK.  The establishment of the UN field office in Seoul, ROK, provides an opportunity to open and extend that conversation.  To the extent that sedition or other laws in the ROK impede frank dialogue within the ROK community, consideration should be given to the reform and amendment of such laws and their enforcement. The legislature in the ROK should consider draft legislation designed to promote accountability in the DPRK for its most serious human rights crimes. A Bill intended to protect and improve human rights of the people of North Korea was first proposed to the legislature in ROK in 2005.  However, progress has been slow.  It may be hoped that after the conclusion of pending elections in the ROK, the passage of legislation of this kind will prove possible.[31]  The United Nations must explain how the pursuit of humanitarian aid to the DPRK can proceed in conjunction with providing redress for grave human rights crimes, including crimes against humanity.  Human rights conferences held in the ROK should no longer present the spectacle of the virtually total absence of opposition parliamentarians. In addressing an existential question, such as the future of the Korean peninsula, all democratic elements in the ROK should actively engage in the issues raised by the report of the COI.  That report cannot be ignored.

5.         Outreach to Korean People: DPRK
It is essential to step up communication to people of the DPRK so that they are informed (as their government attempts to deny to them) on the findings and recommendations of the United Nations COI on their country.  COI members have repeatedly offered to visit Pyongyang to explain their report and answer questions and criticisms.  The COI members are still prepared to do this.  In default of such invitations, the ROK should support and encourage new and enlarged efforts to broadcast news on the findings of the COI and later and other investigations of human rights in the DPRK.  Although there are more than 28,000 refugees from the DPRK in the ROK, their voices are strangely silent.  Whether this is for cultural reasons or for fear of legal breaches, is unclear.  It is remarkable that no large scale and general representation of refugees in ROK has yet been formed.  Providing for the voices of DPRK refugees to speak directly to the people of the DPRK and the ROK should be encouraged by every technological means.  These include the provision of URL and other technologies to bring the advantages of freedom, prosperity, and diversity in the ROK to the notice of the citizens of the DPRK.

6.         Person to Person Contacts   
The COI placed emphasis on the pursuit of person to person contacts between organisations, civil society bodies, and other groups on both sides of the demilitarised border.[32]  Although approaches of this kind may at first be rebuffed, they should be persisted in.  The delays in providing adequate communication between divided families in the DPRK and the ROK are a humanitarian disgrace. Private consultations should be held, if necessary supported by new international funding, to explore what is required to facilitate such contacts.  At the present rate of annual meetings, it will take 300 years to process all of the available applicants.  This is barbarous. Once such meetings are agreed, the modalities constitute no more than technical impediments. It is also shocking that the precise fate of Japanese abductees in the DPRK has not yet been determined.  This unfinished business remains to be addressed.  Contacts between professional bodies should also be explored, including by initiatives from outside the DPRK. With my encouragement and the knowledge of the Korean Bar Association in the ROK, contacts have been established between LawAsia, a regional legal professional organisation, and lawyers’ bodies in the DPRK. Initiatives for sharing specialised knowledge should be explored. The DPRK is proud of its technological institutions. The ROK should permit professional contacts to begin the process of building up dialogue at the individual and grassroots level.


7.         OHCHR Initiatives
One consequence of the COI report on the DPRK was the initiation, for the first time, of at least some meaningful dialogue in the Universal Periodic Review (UPR) before the HRC in Geneva. The acknowledgement by the DPRK of areas where improvement in its human rights record could be secured gives rise to the possibility of technical assistance.  This should be explored.  Likewise, the possibility of a visit to the DPRK by the soon-to-be-appointed new SR should be proposed.  The possibility of a first visit to the DPRK by the High Commissioner for Human Rights should also be investigated, so as to establish appropriate circumstances for such a visit.  None of these initiatives is inconsistent with the closure by the ROK of the Kaesong Complex. None of them presents risks of hard currency accumulation, which was the ultimate reason for the termination by the ROK of the Kaesong Zone.  The DPRK is a member of the United Nations.  The disclosure and acknowledgment of serious defects in the DPRK’s human rights posture imposes on members of the United Nations obligations to provide help and support.

8.         Establish Contact Group   
The COI report also urged the creation of a “contact group,” including countries that have historically maintained friendly ties with the DPRK.[33]  Finding a venue in which the DPRK might feel comfortable to explore an improvement of contacts, where improvement is possible, should be a top priority of the United Nations.  Similarly, the means of promoting dialogue over a peace treaty and eventual reunification should be explored.  The DPRK Ambassador to the United Kingdom recently pointed out that Kim Jong-un had declared that the slogan that should be endorsed by the people of the DPRK in 2016 should be: “Let us frustrate the final challenges by the anti-reunification forces within and without, and usher in a new era of independent reunification!”[34]  The leaders of the ROK have asserted their commitment to reunification. Such common aspirations should be unpacked patiently to find possible ways of achieving real progress beyond mere slogans.

9.         Accountability Messaging
It is necessary to insist that crimes against humanity cannot be waved away as a price that must be paid for international peace and security.  The definition of crimes against humanity restricts such crimes to those that shock the conscience of human beings.[35]  This does not mean that every minor criminal offender must be tried on that account or that all officials in the DPRK will be at risk of prosecution.  That outcome would not be practically possible or sensible.  However, justice to victims of the crimes recounted in the COI report cannot be swept under the carpet.  As in the case of Anne Frank, hiding in an attic in Amsterdam, the message should be sent to victims in the DPRK to keep diaries.  This was the message Anne Frank heard on the BBC.  It led her to write her famous book.  One hopes that a renewed BBC service to Korea (and other news outlets) will bring the same message to current victims of abuses in the DPRK.  Such diaries would need to be kept prudently and with circumspection.  However, in due course, their contemporaneity and detail would support reliable evidence to be used in the prosecution of serious offenses against international law.  In the meantime, as the current SR has insisted in his most recent report,[36] the principle of command and superior responsibility may render high personages in the DPRK responsible for crimes against humanity.  There is some evidence that, towards the end of the Second World War, Nazi perpetrators began to modify their conduct out of fear of being placed on trial, after the war, for their crimes.[37]  One of the most vivid images of the twentieth century, alongside the mushroom cloud but more hopeful, was of the Nazi and other Axis leaders on trial: collected in a dock full of prisoners who once held great power over the life and death of others.  Accountability for great international crimes is one of the signal recent achievements of international law.  It is a work still in progress.  But it does not apply to every wrongdoer.

10.      Special Nuclear Danger
Allowing fully for the foregoing urgencies in securing responses to the human rights offenses reported in the COI report, the fact remains that the development of a significant nuclear arsenal, missile and submarine facilities, and the maintenance of a huge standing army are abiding dangers to the very survival of humanity, certainly in and near the Korean peninsula.  The dangers extend beyond deliberate actions on the part of the DPRK.  They include accidents, misunderstandings, mistakes, or random acts of violence by a person facing acts of violence targeted in themselves. The increasing number of military and other leaders in the DPRK who have been reportedly executed in recent years underlines the risks.  It is those risks that make it obligatory to continue dialogue with the DPRK.  That dialogue must extend beyond the special dangers of nuclear weapons and missiles.  It must extend to proper responses to the “systematic, widespread and gross human rights violations [that] have been, and are being, committed by [DPRK], its institutions and officials,” as found in the COI report.[38]

This is where decision makers need to embrace the paradoxes of the situation in Korea.  They need to remember that the Korean people themselves, in the north and the south, are innocent of the division of the country.  They inherited the division from others, who then influenced the governmental systems of the two hostile states.  The Korean people, in huge numbers, in the north and south, suffered grievously in the Korean War.  So did the Chinese people, including even Mao Zedong who lost his son.  Famine, prolonged hardship, and detention camps proved, with pinpoint accuracy, by satellites peering into the dark space of the DPRK, demonstrate the suffering that is continuing.  Likewise, the voices of the victims collected in the report of the UN COI.

When doubts arise as to the utility of promoting dialogue with the DPRK, the risks of failing to do so must also be remembered.  Pride or even a sense of deserved retaliation, can get in the way of reducing the intolerable risks inherent in isolation and total non-engagement.

When the possibility of improvement of the situation in the DPRK seems at its bleakest, we must remember that the division of Korea is but 70 years of history.  That is short in comparison to the millennia in which the Korean people lived together and the centuries in which they were governed as one nation and people.

IV.           WE ARE ONE

If contemporary observers are tempted to lose their patience with the DPRK, they must be cautioned to stay the course of dialogue and exploration: remembering the commonalities that the people of all nations share with one other, with the Korean people, and with all of them. The Korean people themselves know of these commonalities.  They enjoy the same language, literary classics, musical traditions, cuisine, and great poets.  They also share still more humble pursuits. 

Things in common sometimes emerge unexpectedly from the deep silence when the Korean people from north and south meet, however rarely. Slogans of reconciliation may be shouted at each other from both sides of the DMZ.   However, the sense of mutuality in a recent football match is a metaphor for the paradoxical possibilities. 

Whilst the work of the COI was concluding and being considered by the international community, the Asian Games were held in Incheon, ROK.  To those games, the DPRK proudly sent a member of sporting champions, including its football team. That team won through to the final, only to discover that its competitor for the winner’s medals was the ROK, its neighbour. 

The football game began before a packed stadium in Incheon.  Yet the apparent rivalry was muted by the recognition, on the part of the players and spectators, of the historical nature of the contest.  Each team played with sportsmanlike attitudes.  When a player of the ROK team was accidently bumped and fell over, he was helped to his feet by DPRK players.  When a DPRK player fell, he was helped to his feet by the ROK team. In the end, the ROK team won the medals. But the players exchanged acknowledgements of each other. And all the while the spectators repeatedly cried out, throughout the game: “We are one!”[39]

This is a story of the essential paradox of Korea.  One day, the riddle will be solved.  The paradox will be fully understood.  Until that day comes, humanity, and the United Nations on its behalf, must retain minds open to advancing the changes that arise.  We must be ready for them to come at once with peace and security for all and upholding the human rights of the Korean people and all of them on both sides of the DMZ.  “We are one!” they cried out to us in that stadium in Incheon.  If Fred Iklé were here, he would be urging us to remember that cry.  To accommodate the paradox that it expresses. And to embrace the paradoxical thinking that it demands.




* Delivered as the inaugural Fred Iklé Memorial Lecture, February 19, 2016, Center for Strategic & International Studies, Washington D.C., United States.
** Chair of the United Nations Human Rights Council’s Commission of Inquiry on human rights in the  Democratic People’s Republic of Korea (DPRK) (2013-14); Member of the Secretary-General’s High Level Panel on Access to Essential Medicines (2015-16).
[1] Charter of the United Nations (June 26, 1945); 59 Stat. 1031, TS 993, 3 Bevans 1153, entered into force October 24, 1945, Arts 23, 24, 25, 26.
[2] United Nations, Security Council Report, ‘Human Rights and the Security Council – an Evolving Role’, research report, 2016, no. 1 (25 January 2016) 1, 2.
[3] Charter of the United Nations, above n. 1, Preamble, clauses i and ii.
[4] See e.g. T.R. Shapiro, “Fred Charles Iklé, Reagan Administration Defense Official, dies at 87”, The Washington Post, November 16, 2011; “Fred Iklé (1924-2004),” Institute of Policy Studies, Right Web, last updated September 24, 2012; Andrew Schwartz, Center for Strategic & International Studies (CSIS), November 11, 2011.  The biographical details were taken from these and other sources.
[5] F.C. Iklé, Annihilation From Within, Columbia University Press, New York, 2006.
[6] He was author of two other important monographs: How Nations Negotiate, Harper & Row, New York, 1964; and Every War Must End, Columbia University Press, New York, 1970.
[7] Eulogy for Fred Ikle, by Carl Gershman (President, National Endowment for Democracy), December 10, 2011, reprinted in Life & Human Rights in North Korea, Vol. 62, Winter 2011, pp. 87-89.
[8] The rule of law is expressly mentioned in the third preamble to the Universal Declaration of Human Rights, adopted 10 December 1948; GA Res 217A(111), UN doc A/810, at 71 (1948).
[9] Paradoxes are common in international affairs, including in legal responses.  The “AIDS Paradox”, attributed to Jonathan Mann, taught that some of the most effective laws to respond to the HIV/AIDS epidemic included offering protection and legal support to persons at risk of having and passing the virus.  Paradoxically, winning trust was seen as essential to conveying messages that would reduce the risk of transmission and protect against infections. See United Nations Development Programme, Global Commission on HIV and the Law, Risks, Rights and Health, New York, July 2012, 9.
[10] Quoted in G.A. Gathorne Hardy, A Short History of International Affairs (1920-1939), Oxford University Press, Oxford, 1960, frontis piece.
[11] A/HRC/Res/22/13 (21 March 2013).
[12] HRC, Res 19/13 and GA Res 67/151.
[13] A/HRC/25/CRP.1 (“COI report”).
[14] The report of the COI is available at http://www.ohchr.org/EN/HRBodies/HRC/CoIDPRK/Pages/CommissionInquiryonHRinDPRK.aspx.  A discussion of the methodology adopted by the COI may be found in M.D. Kirby, “The UN Report on North Korea: How the United Nations Met the Common Law”, Judicial Officers’ Bulletin, September 2015 (NSW), vol. 27, number 8 at pp 72-24.  See also P. Alston and S. Knuckey (Eds.), The Transformation of Human Rights Fact-Finding, Oxford University Press, Oxford, 2016.
[15] This was Part III of the COI report (at pp 19ff, para [85] ff).  Historical materials appear in Victor Cha, The Impossible State: North Korea, Past and Future, ECC, Harper Collins, 2011; Andrei Lankov, The Real North Korea – Life and Politics in the Failed Stalinist Utopia, Oxford University Press, Oxford, 2013.
[16] COI report, pp21-22 [95].
[17]  It was absent as a protest against the continued occupancy of the China seat in the United Nations by the Republic of China and the failure to recognise the credentials of the People’s Republic of China.  After the UN vote, the Soviet Union hastily returned to the Security Council; but the vote had been adopted.  Questions persist as to the legality of the vote in the absence of the “concurring votes of the permanent members” in accordance with the United Nations Charter, Art 27.3.
[18] The total Korean casualties were approximately 2 million; Chinese, 600,000; United States, 36,000; and United Kingdom and others (including Australia) 1,000.
[19] COI report, p43 [157].
[20] Charter of the United Nations above n.1, Art 27.2, requiring 10 affirmative votes.  In fact, in December 2014 there were 11 affirmative votes, 2 abstentions and 2 against.
[21] Remarks on the adoption of the provisional agenda of the UN Security Council on the situation in the Democratic People’s Republic of Korea, UN Security Council, New York, December 10, 2015.
[22] Remarks to the Security Council Briefing on the situation in the Democratic People’s Republic of Korea by Under-Secretary-General Jeffrey Feltman, December 10, 2015.
[23] Announcement of the U.S. Senators Bob Corker (R-Tenn), Ben Cardin (D-Md) and Cory Cardner (R-Colorado) and Robert Menendez (D-NJ) announcing that the U.S. Senate Foreign Relations Committee had passed the North Korea Sanctions and Policy Enhancement Act, January 28, 2016.
[24] R. Frank, “The Kaesong Closure, Punishment or Shot in the Foot”, published in 38 North, February 12, 2016.
[25] The reference was to the “R2P” principle.  The origins and implications of this principle in international law are described in Gareth Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All,” Brookings Institution Press, Washington DC, 2008, according to this exposition “the primary responsibility for protecting its own people from mass atrocity crimes lies with the state itself.  State sovereignty implies responsibility, not a license to kill.  But when a state is unwilling or unable to halt or avert such crimes, the wider international community then has a collective responsibility to take whatever action is necessary”.
[26] United Nations, Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea. A/HRC/31/70 (19 January 2016), p10 [39(a)].
[27] COI report, pp361-365 [1201]-[1208].
[28] M.D. Kirby and Sandeep Gopalan, ‘Recalcitrant’ States and International Law: The Role of The UN Commission of Inquiry on Human Rights Violations in the Democratic People’s Republic of Korea”, 37 University of Pennsylvania Journal of International Law, 229 at 279-294.
[29]  COI report, Appendix II.  See also report summary, 27 – 36 and recommendations in report, p369 [1221].
[30] After the lecture on which this article was based was delivered, it was announced that the United States and China had agreed on a resolution addressed to North Korea’s nuclear “provocations” and that the new resolution would go to a Security Council vote shortly.  New York Times, February 25, 2016, 1; The Australian, February 26, 2016, 9.
[31]  Human Rights Watch Asia, (February 2, 2016) “South Korea’s Act to Promote Rights in North Korea”. Since this lecture was given, ROK adopted on March 2, 2016 the North Korean Human Right Act.
[32]  COI report, p370 [1222].
[33]  COI report, p371 [1225] (h).
[34]  Kamila Kingstone, “North Korea’s UK Ambassador: ‘We want peace but we’ve been victimised?” The Guardian, London, January 14, 2016.
[35] COI report, p319 [1022]-[1065].
[36]  Report of the Special Rapporteur, above n.26, p6 [E2].
[37]  The reference is to the belated agreements by H. Himmler in late 1943 to permit a delegation of the International Committee of the Red Cross to inspect the Theresienstadt Concentration Camp and the release of a small number of Danish Jewish prisoners.  See e.g. Vojtěch Blodig, Terezĭn In the “Final Solution of the Jewish Question 1941-1945”, Oswald, 2003, 34-37.
[38]  COI report, p365 [1211].
[39] Agence France-Presse, http://sport.ndtv.com/asian-games-2014/news/230881-asian-games-top-north-korean-leaders-to-attend-closing-ceremony.

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