The UN COI at 10 Years: Strategic Priorities & Considerations

By Michael Kirby, former Chair of the UN COI on Human Rights in the DPRK

January 26, 2023

Next year will mark the 10th anniversary of the report issued by the UN Human Rights Council’s Commission of Inquiry (COI) on Human Rights in the Democratic People’s Republic of Korea (DPRK). Discussions have begun in Seoul, Washington D.C., and other capitals about the steps that might be taken to commemorate and reflect upon this milestone. The goal of these efforts would be to revive knowledge about the COI report and its detailed recommendations, and to rekindle a commitment to remedial action by the international community.

With this in mind, I am pleased to offer a non-exhaustive list of follow-up initiatives, together with guidance that might be taken to mark this 10th anniversary (hereafter “COI+10”).

UN MANDATE HOLDERS

From 2013 to 2014, I held the UN mandate of Chair of the COI on Human Rights in the DPRK, acting always with the participation of the other members of the Commission, Mr. Marzuki Darusman and Ms. Sonja Biserko. Our mandate was effectively completed when we delivered our report to the UN Human Rights Council (HRC) on 7 February 2014, or possibly after we followed up with the delivery of the report to the Third Committee of the UN General Assembly (GA) in the fall of 2014. On 22 December 2014, we attended the meeting of the UN Security Council, to which the GA had transmitted the COI report, together with expressions of its concern and recommendations.

Since the mandate of the COI has concluded, its members have no current authority to speak or act for the UN. Although individual members of the former COI have been invited by interested audiences to share their reflections on many occasions since 2014—especially in Seoul, Washington D.C., Tokyo, and London—they have always made it clear, as I do now, that their mandate for the UN has concluded. This role belongs to successors appointed by the United Nations, acting through its relevant agencies, including the HRC and the Office of the High Commissioner for Human Rights (OHCHR). The mandate holder of the UN Special Rapporteur on the situation of human rights in the DPRK plays an especially important role. This is presently Professor Elizabeth Salmón, who was appointed to replace Tomás Ojea Quintana in that office last year.

It will therefore be important that any follow-up action on the COI taken by member states or their agencies or individuals should always include full notification to, and cooperation with, the Special Rapporteur. In organising any hearings or events (actual or virtual), it will be important to inform the Special Rapporteur to ascertain any views she may wish to express, and to comply as far as possible with scheduling that would facilitate, where so decided, her participation in any follow-up events.

ANNIVERSARY DATES

Many believe that a useful way to mark the 10th anniversary of the COI would be to keep in mind (and try to coincide with) significant dates in the history of the COI, and possibly also at the venue of important earlier events. These dates include:

• 21 March 2013: Resolution of the Human Rights Council at its 22nd session in Geneva to establish the COI on Human Rights in the DPRK. This was done by HRC Resolution 22/13, mandating the body 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 may amount to crimes against humanity’’ (A/HRC/RES/23/13). The resolution to establish a COI was taken without a vote.
  
  
• 7 May 2013: Appointment of the members of the COI by the then-President of the HRC, Ambassador Remigiusz Achilles Henczel of Poland. The appointments announced to the HRC were Michael Kirby of Australia (Chair), Marzuki Darusman of Indonesia (then-Special Rapporteur on North Korean Human Rights, who recommended the creation of a COI), and Sonja Biserko of Serbia (human rights expert and subsequently the holder of a mandate of a follow-up UN expert group).
  
  
• 1 July 2013: First meeting of the COI at the Palais Wilson in Geneva, when the members of the COI established the methodology of transparency and openness that was to be adopted in the discharge of their mandate. This novel methodology was adopted unanimously by the COI and observed throughout the discharge of its mandate.
  
  
• 20 August 2013: Commencement of the COI’s public hearings and consultations at Yonsei University in Seoul, Republic of Korea (ROK).
  
  
• 29 August 2013: Public hearings and consultations at the UN University in Tokyo, Japan.
  
  
• 23 October 2013: Public hearings and consultations in London, UK.
  
  
• 30–31 October 2013: Public hearings and consultations in Washington D.C.
  
  
• 1 December 2013: Commencement of deliberations of the COI at Palais Wilson, followed by approval of the draft report and arrangements for follow-up.
  
  
• 17 February 2014: First official publication of the COI report (UN Doc. A/HRC/25/63 and detailed findings, A/HRC/ 25/CRP.1). A press conference was held the same day at Palais des Nations, Geneva.
  
  
• 17 March 2014: Formal presentation of the report by the COI Chair to the HRC plenary session, followed by questions, comments, and remarks.
  
  
• 30 March 2014: Transmission of the COI report by the HRC to the UN General Assembly with strong endorsement (Vote: 30 pro; 6 contra; 9 abstain). This HRC resolution called for the report’s transmission to the GA, and by the GA to the Security Council (A/HRC/RES/25/25).
  
  
• 17 April 2014: Arria-formula meeting at UN headquarters in New York of Security Council members—and by other states as observers—to receive the COI report. The meeting was not attended by the People’s Republic of China and the Russian Federation, with apologies conveyed by the latter.
  
  
• 18 November 2014: After many months of deliberation by the GA Third Committee in New York, a Cuban amendment supporting the DPRK was defeated. The GA Third Committee then endorsed the COI report with another strong vote, followed by a GA plenary vote on December 18 (Vote: 116 pro; 20 contra; 53 abstain). As recommended by the COI, exceptionally, the GA transmitted the COI report to the Security Council (A/RES/69/188).
  
  
• 5 December 2014: Letter initiated by the Ambassadors of France, United States and Australia (then a non-permanent member of the Security Council) to the President of the Security Council (Chad), signed by 10 Council members, for a procedural resolution to place human rights in the DPRK on the Security Council’s agenda. For a procedural resolution to be adopted by the Security Council, an affirmative vote of nine of its members is required.
  
  
• 22 December 2014: UN Security Council adopted the procedural motion put forward by the 10 states, which was read out by Australia. The People’s Republic of China and the Russian Federation challenged the contention that the proposed resolution was procedural, but ultimately it was so decided, with 11 states in favour (Vote: 11 pro – Argentina, Australia, Chile, Jordan, Lithuania, Luxembourg, ROK, and Rwanda together with three permanent member states – France, United Kingdom, and United States; 2 contra – China, Russia; 2 abstain – Nigeria, Chad). The COI report was thus placed on the Security Council’s agenda. Thereafter, the human rights situation in North Korea was raised under the agenda item added by this procedural vote.

THE UN, UNITED STATES, AND JAPAN

The United Nations and its various organs and agencies must be an obvious focus of the consultations surrounding the COI’s 10th anniversary. The problem of Korea preceded the formal establishment of the UN in 1945. As the COI report indicated, the origins of the partition of the Korean Peninsula may be found in the meeting of the Allied Powers at the Cairo Conference in 1943 (COI Report, para. 95). They agreed that, after the defeat of Japan, the colonial power, the independence of Korea would be achieved “in due course.”

Thus began, in 1946, the division of Korea into two zones of control: the United States in the south, and the Soviet Union north of the 38th parallel. This was a pragmatic decision, intended to be of short duration. It was not consistent with the requirements of the UN Charter of 1945, which envisaged the right of “self-determination” for those who had been under colonial rule. The Korean people have never decided for themselves in favour of partition. Exercise of the right of self-determination is the overriding obligation of the UN and the right of the Korean people.

As the effective cause of the division of Korea, the United States of America and the Russian Federation, as successor to the USSR, have a primary, continuing, unfulfilled obligation. So does the United Nations itself. It is therefore proper that, in consultation, where possible with the post-war Korean states, the United States should play an important role in assisting the Korean people to exercise their fundamental human rights, and the right of peoples to self-determination. This contextual theme should inform the discussions surrounding the COI’s 10th anniversary.

It also explains why the two Korean states, intended to be temporary, have an obligation of their own to promote and achieve the self-determination of the Korean people, so far denied. The ROK cooperated fully with the COI. However, despite repeated efforts to make contact and to secure entry and cooperation, the DPRK has so far declined to cooperate either with the UN agencies concerned with human rights, the COI, or with the ROK.

Throughout its work, the COI insisted upon affording opportunities to the DPRK to participate in its work and to provide opportunities for inspection, provision of submissions, and commentary on conclusions. It would be desirable that consultations regarding the post-COI events should likewise insist at every stage on inviting cooperation, entry, inspection, and commentary by the DPRK, just as the COI did in pursuing the neutral interests of the UN and the COI. Renewed efforts at dialogue should be made before, during, and after the 10th anniversary consultations.

In the face of refusal and hostility, there should be the same neutrality as has been displayed by the UN’s organs, agencies, the COI, and the Special Rapporteur. This has an important symbolic value and, even now, may ultimately attract the engagement of the DPRK. Whether it does so or not, it is the correct stance for the UN and all impartial observers to adopt.

Lastly, Japan actively supported the work of the COI throughout its inquiry. It still has a special interest in the issues presented to the world by the DPRK. This includes human rights issues, notably that of the abduction of Japanese nationals from Japan; the abduction of nationals of other countries; the return to Japan of its nationals who were induced to seek a “promised land” in the DPRK and were retained; and the need to account for prisoners of war retained in the DPRK, as well as the remains of abductees and former prisoners; and other problems that overlap with the issue of abduction. The DPRK itself has acknowledged that this issue is not concluded.

The recent international security issue presented by the firing of North Korean missiles over Japanese territory and Japanese waters adds to these further unresolved issues of human rights. The recent re-election of Japan to membership in the UN Security Council also arguably provides another reason for the special involvement of Japan in events surrounding the COI’s 10th anniversary. According to media reports, the bilateral relationship between the ROK and Japan has recently improved. Consideration should be given by the sponsors to involving Japan in the COI+10 anniversary events and their design.

CHANGING ADMINISTRATIONS
IN THE REPUBLIC OF KOREA

The COI performed its functions during the administration of President Park Geun-hye in the ROK. She extended courtesies to the COI and the assistance of officials. A weakness of the COI’s consultations was the absence of most members of the then-opposition parties and supporters. Since at least the time of President Kim Dae-jung and his “Sunshine Policy,” there have been political differences within the ROK concerning the proper response to reports of human rights abuses in the DPRK, and the investigation and criticism of reported human rights abuses in the north. There have also been differences of opinion about initiatives taken by the ROK for the pursuit of unification, contact with the DPRK, and cooperation with human rights critics, including the COI.

With the election of President Moon Jae-in, the ROK’s policies towards the COI report and responses to evidence of abuses changed. The participation of the ROK in annual UN resolutions condemning the abuse of human rights in the DPRK, in particular ROK co-sponsorship, was suspended. Criminal proceedings (challenged in the Constitutional Court) were brought against citizens of the ROK for releasing balloons containing information critical of the DPRK, including the report of the COI, which is not available in North Korea. The election to succeed President Moon Jae-in led to the election of President Yoon Suk-yeol, who entered office on 10 May 2022.

The Yoon administration appears to have taken several different policy directions from its predecessor. It will be essential that the participants in the 10th anniversary events should be given information, not always available to foreign observers, on the differences already evident in the policies affecting reported human rights abuses in North Korea. Furthermore, it will be important that the omission of the COI to engage effectively with opposition parties and individuals in the ROK should not be repeated.

Without intruding into partisan political issues, it will be the responsibility of public officials to alert overseas participants about any changes in policy towards the COI report; human rights investigations; participation in UN investigations; and responses to activities designed to inform citizens in the DPRK about relevant UN activities, especially the report of the COI and its follow-up. As we mark COI+10, it would be desirable for appropriate experts to give information to participants about the availability of access to international news, including UN investigations of human rights abuses.

CIVIL SOCIETY, DEFECTORS, AND ESCAPEES

Apart from the possible weakness in the COI’s consultation with diverse civil society organisations, resulting from limited time and impartial reliance on official sources, it is also essential for relevant actors to consult more widely with the fullest possible range of civil society organisations, reflecting divergent points of view.

Although some consultation was held with “defectors” (also referred to as escapees or refugees), it would be desirable that appropriate new consultations should be arranged with a larger number of civil society organisations, in general, and organisations of defectors, in particular. Although the number of such entrants into the ROK from the DPRK has diminished, due partly to the impact of COVID restrictions, such persons are vital sources of information on the human rights abuses that drove them to depart from the DPRK.

Leading members of this community (including some who have been elected to the ROK National Assembly) should be sought out and invited to offer their perspectives to the COI+10 consultations, particularly on any changes that have occurred in the situation of human rights in the DPRK over the past 10 years.

UNIVERSAL HUMAN RIGHTS

The 75th anniversary of the Universal Declaration of Human Rights (UDHR) will occur on 10 December 2023. The organisation of COI+10 should emphasize this anniversary and its relevance to following up the essential criterion of the COI's critique of abuses of human rights in the DPRK. That critique was grounded in the principles of the UN Charter (with its insistence on universal human rights) and of the UDHR, which gives expression to the content of such rights, as later elaborated by several UN human rights treaties. The DPRK was, and still is, a party to some of these treaties.

Although some criticism of UN organs and agencies is commonly based on alleged Western influence over the contemporary content of human rights, the UN Charter and UDHR are universal statements that apply to all member states, nations, peoples, and individuals. It would be desirable that COI+10 should rebut the suggestions of regional or national exceptionalism. The anniversary of the UDHR affords the international community an opportunity to re-assert its commitment to these universal principles.

It would be desirable for the responses of the DPRK to the Universal Periodic Review (UPR), conducted by the HRC, to be analysed and measured against the criticisms expressed in the COI report and subsequently by UN Special Rapporteurs.

DIPLOMATIC TECHNIQUES

When considering the most effective ways to achieve the DPRK’s compliance with universal human rights, it is essential to embrace normal diplomatic techniques for negotiation and securing change. This involves, normally, the avoidance of mere condemnation and noisy criticism. It involves seeking out and identifying issues on the borderline of those held in common with the negotiator concerned.

Although former U.S. President Donald Trump prided himself on reaching a “deal,” his professional career was in real estate. Recent evidence suggests that he was sustained by the fortune secured by his father. Even to those—like myself—who were not opposed to President Trump’s outreach to the DPRK, after years of isolation, his negotiation technique was counterproductive.

It began with his initial speech to the UN General Assembly, threatening the DPRK with destruction “like nothing seen before.’’ He then shifted his approach to a “bromance’’ with Kim Jong-un, the Supreme Leader of the DPRK. He invited Kim first to Singapore and then to Hanoi. He plunged immediately into attempting to secure a deal regarding the most difficult subject for ultimate negotiation: nuclear weapons and long-range missile systems. As these were central to the protection and survival of the Kim family regime, the attempt quickly failed. That failure was compounded by the breakdown of the Hanoi summit on the morning of its second day. Whatever opportunity the U.S. president had from his surprising initiative was squandered and apparently wasted.

The normal technique of diplomacy is to start at the outside of a circle of issues, negotiating first those issues, initially less significant, where there may be common ground and where limited agreements might be reached. This can then lead to more comprehensive agreements. Central, extremely difficult, issues are typically left to be addressed in later negotiations, especially if there is a chance of first building mutual respect and negotiating trade-offs.

In its report, the COI was conscious of this diplomatic technique. Although its recommendations certainly included difficult subjects such as undertaking “profound political and institutional reforms without delay to introduce genuine checks and balances upon the powers of the Supreme Leader’’ (COI Report, conclusions, para. 89a), it was accompanied by other recommendations susceptible to agreement. This included: 

• measures to ensure gender equality in practice;
• the right to food without discrimination giving particular attention to the needs of women and vulnerable groups and to providing free and unimpeded access for humanitarian aid;
• a moratorium on execution of the death penalty;
• establishment of independent media and allowing citizens to freely access the Internet, social media, international communications, and foreign broadcasts; 
• abolition of the prohibition on foreign travel;
• provision of full information to families of persons abducted;
• ratification of human rights conventions;
• establishment of a field-based presence with technical assistance from the Office of the High Commissioner for Human Rights; and
• introduction of postal services, restoration of railway and airline services, sporting links, and cultural links (COI Report, conclusions, para. 89).

It would be desirable for COI+10 to have expert advice from diplomats, experienced in difficult international negotiations, to reflect upon how, in practice, success can be achieved where the initial differences between the parties are large and entrenched.

REVIVING AWARENESS OF THE COI REPORT

The passage of 10 years has erased much of the impact caused by the COI report at the time of its issue. One of the problems of UN human rights reports is that they are usually not well published or circulated. A UN report will generally sink like a stone before the ink is dry. Real efforts were made by the COI to render its report accessible and readable. The fact that it was preceded by a series of widely publicised public hearings meant that, on publication, it was something of a sensation. It secured much international publicity. It provided detailed practical cases, based on evidence presented at public hearings, thereby identifying and personifying the human rights abuses found. It remains a different model for the writing of UN human rights reports.

Although highly readable, no readily accessible version of the COI report was made available in print form. The electronic version was available online, but relatively little is known against the background of many other UN human rights reports. The 10-year anniversary affords an opportunity to reconsider creatively what can be done to better distribute the knowledge contained in this report. Perhaps if UN human rights reports were published in an improved format, there would be more follow-up. The COI report should be reconsidered for the lessons it provides for UN human rights reports more generally.

The COI report, the annual reports on the DPRK’s human rights record, and other UN human rights reports should not be filed away and forgotten once delivered. There needs to be a regular system for considering their implementation and follow-up. Auditing the performance of mandate holders will also be more effective if there are available and readable reports.

UN HUMAN RIGHTS APPARATUS

COI+10 affords an appropriate opportunity to review the COI report in the context of the UN’s human rights apparatus more generally. To what extent did the innovations in the procedures of the COI on Human Rights in the DPRK provide models that (a) have been followed in the HRC; or (b) should have been followed with or without variations? Inevitably, the immediate danger presented to the UN and international community by the DPRK’s development of nuclear weapons, the testing of such weapons, the development of further technology, and the risks of proliferation enliven international concern.

Concern about abuses of universal human rights is important, but human rights issues tend to be regarded as endemic and less urgent when it comes to international action. Given the existential danger of nuclear weapons, the case of North Korea continues to provide an urgent reminder of the inadequacy and weakness of current international institutions to protect global peace and security, to uphold universal human rights and existential values, and to achieve justice. This is the basic lesson from the experience of the COI on Human Rights in the DPRK. The present dangers revealed in the COI report and the urgency of the problems disclosed therein have not been matched by enhanced and effective responses by the UN and the international community.

PRAGMATISM, REALISM, AND OPTIMISM

Reflecting on the last 10 years, there are many reasons for pessimism—even despair and alarm. We should use the 10th anniversary of the COI to reflect on whether humanity may take encouragement by reflecting on the alternative. What would have happened if there had been no COI or no UN?

Since there is no immediate prospect of major changes to relevant international institutions, should we derive a measure of optimism about the present dangers to humanity that the world did its best? Does a practical and pragmatic approach support an optimistic perspective—that humanity usually muddles its way to survival and to accountability for crimes against humanity, genocide, and war crimes? How, if at all, can we build on the experience of the COI on Human Rights in the DPRK to provide enhanced international remedies for grave wrongdoings that comes to light? Or are we doomed to an inescapable failure of the international community to respond quickly enough and effectively enough to the dangers to humanity? And if so, what precisely can we do to enhance human rights, international peace and security, and the attainment of justice?

It would clearly be desirable for a report to be written about the engagements surrounding the 10th anniversary of the COI. This report should be followed by international dialogue and criticism. It should also be presented in an appropriate way to the UN Secretary-General, the UN High Commissioner for Human Rights, the President of the UN HRC, civil society organisations, and national officials and experts.

Those who silently accept the defects in the current response to the existential dangers that humanity faces are themselves part of the problem that threatens the survival of the human species.

Edited for HRNK by Roberta Cohen, HRNK Co-Chair Emeritus

Categories: Human Rights, Japan, North Korea, South Korea, United Nations, United States

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