UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea
By Christine Hong | March 31, 2014
(Originally published in the Asia-Pacific Journal Vol 12, Issue 13, No. 2)
Abstract: This essay offers a historicized overview of the consolidation of contemporary human rights as the dominant lingua franca for social justice projects today and applies it to the debate over human rights in North Korea. Highlighting what the rights framework renders legible as well as what it consigns to unintelligibility, it examines the antinomies of contemporary human rights as an ethico-political discourse that strives to reassert the dominance of the global North over the global South. Relentlessly presentist in its assignment of blame and politically harnessed to a regime-change agenda, the human rights framing of North Korea has enabled human rights advocates, typically “beneficiaries of past injustice,” to assume a moralizing, implicitly violent posture toward a “regime” commonsensically understood to be “evil.” Cordoning off North Korea’s alleged crimes for discrete consideration while turning a willfully blind eye to the violence of sanctions, “humanitarian” intervention, and the withholding of humanitarian and developmental aid, the North Korean human rights project has allowed a spectrum of political actors—U.S. soft-power institutions, thinly renovated Cold War defense organizations, hawks of both neoconservative and liberal varieties, conservative evangelicals, anticommunist Koreans in South Korea and the diaspora, and North Korean defectors—to join together in common cause. This thematic issue, by contrast, enables a range of critical perspectives—from U.S.– and South Korea–based scholars, policy analysts, and social justice advocates—to attend to what has hovered outside or been marginalized within the dominant human rights framing of North Korea as a narrowly inculpatory, normative structure. This excerpted article is adapted from the introduction to a two-part thematic issue of Critical Asian Studies on “Reframing North Korean Human Rights” (December 2013 and March 2014). The full article can be read on the Asia-Pacific Journal site.
I. Victors’ Justice?
In February 2014, upon completing a several-month investigation into “human rights in the Democratic People’s Republic of Korea [DPRK, or North Korea]”—an investigation initiated in the sixtieth anniversary year of the 1953 Korean War Armistice Agreement that halted combat but did not end the war—the three-member Commission of Inquiry (COI) established by the United Nations Human Rights Council (UNHRC) concluded that North Korea had committed crimes against humanity. Such “unspeakable atrocities,” in the framing account of Commission chair Michael Kirby, “reveal a totalitarian State [without] parallel in the contemporary world.”1 Analogies to the “dark abyss” of North Korea, the Australian jurist maintained, could be found only in the brutality of the Third Reich, South African apartheid, and the Khmer Rouge regime.2 Reproduced in news reports around the world, Kirby’s markedly ahistorical examples may have succeeded in inflaming global public opinion yet they failed to contextualize the issue of North Korean human rights in a way that might generate peaceful structural resolution. Indeed, insofar as the 372-page COI report singularly identified the North Korea government as the problem—both as “a remaining and shameful scourge that afflicts the world today,” in Kirby’s jingoistic phrase, and as the primary obstacle to peace in Korea—the Commission gave new life to the vision of regime change that has animated post-9/11 North Korean human rights campaigns. By recommending that North Korea and its high officials be brought up before the Hague-based International Criminal Court (ICC), it continued the hostilities of the unresolved Korean War “by means purporting to be judicial.”3 The urgent question of a long-deferred peace relative to the Korean peninsula, which the Commission incoherently addressed, bedeviled its conclusions, rendering its findings partial, its recommendations in some instances uneasily one-sided, and its premise of impartiality suspect.4 Moreover, that the COI proceedings and report aligned the United Nations with the United States, South Korea, Japan, and Great Britain while singling out North Korea and, to a far lesser degree, China, for blame performed an unsettling restaging of the Korean War on the agonistic terrain of human rights, suggesting an encrypted “victor’s justice” with regard to an unending war that up to now has had no clear winners.5
By overlooking the roots of North Korean militarism and underdevelopment in the unending Korean War, by failing to offer a “systematic and widespread” account of “crimes against humanity” that critically assessed the impact of unresolved war on the entire peninsula and in the greater region, and by assuming the neutrality of the United Nations, the United States, South Korea, Great Britain, and Japan relative to North Korea, the Commission thereby offered an inculpatory account of North Korean human rights that obscured rather than illuminated the complex consequences of unresolved interventionist war.6 Indeed, the footnote status accorded to the Korean War’s historical and ongoing violence within today’s dominant international human rights framework speaks to the limitations of available “post-Cold War” structures of recognition when it comes to the unsettled, in many cases active, legacies of the asymmetrical wars waged by the United States and its allies throughout the Cold War. Justice, with regard to the ongoing Korean War, as Kim Dong-choon, a former standing commissioner of South Korea’s Truth and Reconciliation Commission (TRCK), has maintained, cannot be had in the present. Instead, as he has soberingly argued, “dignity for all” and meaningful peace are conceivable “only after the unification of North and South Korea.”7 Implicit in this future prospect for broad structural reckoning is precisely what the TRCK (2005-2010), constrained in its mandate by the U.S.-ROK “security” alliance, could not compel, and what the ICC, for reasons of Realpolitik, is similarly not empowered to address: namely, U.S. accountability.8
In this regard, the Commission’s principal recommendation that North Korea be referred to the ICC for its perpetration of “crimes against humanity” should be critically evaluated against the attenuation, in our historical moment, of “crimes of aggression,” or “crimes against peace.” Crucial, here, is not only the legal limbo of the unresolved Korean War, but also, the repeated efforts by North Korea as well as scholars and activists in South Korea and the United States to emphasize the right to peace as the foremost priority on the Korean peninsula and to render the war’s consequences visible within a human rights framework. To the extent that North Korea’s grievances with regard to the unending Korean War are referenced at all in the COI report, they are framed as baseless propaganda wielded by the North Korean state to justify its human rights violations against the North Korean people. Riven by contestatory claims, unsettled truths about “North Korean human rights,” as we thus can begin to see, are invariably entangled with competing truths about the Korean War. More to the point, justification for “international” intervention under UN auspices on the Korean peninsula at mid-century functions as a necessary premise for today’s interventionist human rights posture toward North Korea. Indeed, in its conclusions, the COI report incomprehensibly identifies the “responsibility” of the “international community” in delivering “an effective response” to North Korea’s human rights violations “because of the unresolved legacy of the Korean War.”9 It bears recalling: if the stated rationale for U.S. and UN intervention in Korea was that North Korea, on June 25, 1950, aggressed the “border” of the 38th parallel—a demarcation line, to be clear, rather than an international boundary drafted by the United States in 1945 with zero Korean input—this studiously reactive account of the war’s origins fails to account for the indiscriminate aggression that followed. The brutal U.S. occupation of the North and its massive aerial bombing campaigns, perpetrated under the cover of the United Nations Command, would generate a swath of ruin impossible to justify as self-defense on the part of the United States. When all was said and done, North Korea’s major cities and towns would be reduced to rubble, its civilian infrastructure smashed, and an estimated twelve to fifteen percent of its population killed. As historian Bruce Cumings has pointed out: “Why is it aggression when Koreans cross the 38th parallel, but imaginary when Americans do the same thing?”10
As Cumings’s critique begins to intimate, the persistent legal illegibility of aggressive war, a crime “predominately committed by the political and military authorities of the major powers,” point less to a breakdown in a global system of rule of law than they do to the workings of an imperial model of global governance that rescripts geopolitical terrain through superior military force and makes recourse to legitimation from “reactive, politically unaccountable institutions (such as courts of law).”11 By definition legibus solutus, or beyond the law, imperial sovereignty, to some degree, could be said to throw the system of international law into “legal incoherence.”12 As jurist Danilo Zolo has pointed out, “[i]mperial power is incompatible both with the general character of law and with the formal equality of subjects in the international legal order.”13 It is revealing, along these lines, that crimes against peace, which were prioritized as “the supreme international crime,” indeed placed, in seriousness, above crimes against humanity and war crimes at the Nuremberg and Tokyo Tribunals and enshrined as crimes of aggression in the Rome Statute of the ICC, are functionally little more than a dead letter in international law.14
We might also think of what Walter Benjamin referred to as the “lawmaking character of violence.”15 Effectively immune to prosecution for crimes of aggression, the United States has wielded the lesser category of crimes against humanity, a legal classification dormant for the duration of the Cold War, against the sovereignty of small postcolonial states. Since the fall of the socialist bloc, we have been repeatedly witness to the unfurling of a spectacular dramaturgy staged around the vanquished that takes the sequence of U.S. interventionist war followed by criminal proceedings under a highly selective interpretation of jus in bello, namely, war crimes, crimes against humanity, and the crime of genocide. In this era, the international criminal tribunal, with its fractured and uneven system of justice, has served as a vital mechanism for the consolidation of what Neda Atanasoski refers to as a “postsocialist imperialist” world order in which international legal mechanisms have been monopolized by the United States and its allies and harnessed to a dubious “global ethic of humanitarianism,” which is itself inextricably linked to a regime of U.S. perpetual warfare.16
As an intended prelude to a juridical process, whether via the ICC (doubtful given the likelihood of China’s and possibly Russia’s veto) or the establishment of an international criminal tribunal along the lines of those set up for the former Yugoslavia and Rwanda, the COI proceedings and report on North Korean human rights thus must be understood within the context of “a dual-standard system of international criminal justice…in which a justice ‘made to measure’ for the major world powers and their victorious leaders operates alongside a separate justice for the defeated and the downtrodden.”17 Indeed, prior to recommending that North Korea be referred to the ICC for its alleged commission of crimes against humanity, the Commission, in late 2013, held a series of carefully orchestrated hearings in four sites: namely, Seoul, Tokyo, London, and Washington, DC. Again, the unsettled past (and present) of the Korean War served as prologue. That South Korea, Japan, Great Britain, and the United States not only equipped and financed the COI proceedings but also were allied parties or participants in the Korean War hovered as illegible context for the work and mandate of the Commission, even as this unresolved structure of enmity everywhere informed and, one could argue, contaminated the Commission’s informational base, procedures, and findings.18 Occasionally referenced but nowhere analyzed in the COI report for its profound structural impact on human security both north and south of the DMZ, the irresolution of the Korean War was, for the most part, topically confined to a short perfunctory section in the report dedicated to historical and political context. This glaring failure to wrestle with the human costs of the unending Korean War and to prioritize the right to peace on the Korean peninsula haunted the Commission’s one-sided findings with regard to chronic North Korean hunger, separated families, and war abductees. Far from tackling the consequences of unresolved war head-on, the report displaced and minimized its significance.
Insofar as the COI human rights report rehearsed a narrative familiar in its details to “those who know North Korea well,” as historian Charles Armstrong stated to Vice News, it thereby reified, rather than challenged, a structure of enmity whose consequences must be understood as grave human rights matters meriting critical scrutiny in their own right.19 Although the report, in its synopsis of Korean history, offered a cursory overview of the Korean War that cited the research of “Bruce Cummings [sic]” and gestured toward “wounds inflicted by the Korean War [which] were deep and are still felt…on both sides of the border [sic],” it nonetheless doggedly restricted its investigation of state criminality to North Korea, and in a few instances, to China—a narrow nation-based investigation inadequate to the task of examining the structural consequences and human costs of unending war as itself a crime against humanity and, even more seriously, a crime against peace.20 When discussion of the war’s consequences surfaced, the latter were unintelligibly framed as human rights violations on the part of North Korea alone. In its final recommendations, for instance, the COI report singularly calls on North Korea to “[a]llow separated families to unite,” without addressing the root causes of their separation, much less the UN role in fomenting the state of division, peacelessness, and human tragedy that prevails on the Korean peninsula.21 With its focus on “widespread and systematic attack directed against any civilian population,” the COI report conceivably could and arguably should have offered some structural reckoning with the profound human costs of unabated war that extended across the DMZ and outward to the larger Asia-Pacific region, including the system of U.S. and UN sanctions reaching back over six decades; the ongoing U.S. military presence south of the DMZ (against the 1953 Armistice recommendation); massive U.S. joint and trilateral military exercises with South Korea and Japan, some that simulate nuclear strikes against North Korea and practice the takeover and occupation of North Korea; regional nuclear proliferation and ambitions; South Korean National Intelligence Service (NIS) cyber-warfare against “North Korea” that tilted domestic election results; the National Security Law and redbaiting in South Korea; the undemocratic militarization of Jeju, Okinawa, Guam, and Hawai‘i under the resurgent sign of a U.S. military pivot to Asia and the Pacific in response to a “North Korean threat”; and so forth.
Incongruously, the Commission closes its 372-page report with a recommendation impossible to square with its reiteration of near-singular North Korean culpability: “the United Nations and the states that were parties to the Korean War should take steps to convene a high-level political conference…and, if agreed, ratify a final peaceful settlement of the war that commits all parties to the principles of the Charter of the United Nations, including respect for human rights and fundamental freedoms.”22 If recalling the 1953 Armistice Agreement’s recommendation that a “political conference of a higher level of both sides [the United States and North Korea/China] be held by representatives appointed respectively to settle through negotiation the questions of the withdrawal of all foreign forces from Korea [and] the peaceful settlement of the Korean question,” the COI report, in all other respects, failed to locate the issue of North Korean human rights within a structure of persistent enmity that has adversely impacted the human rights of the peoples of not only North Korea but also South Korea and the larger Asia-Pacific region.23
Instead, the COI report identified North Korea’s “instrumental” use of the “fear of invasion and infiltration”—what the Commission held to be North Korea’s cynical orchestration of a “state of emergency” (apparently not to be conflated with the indisputable fact that the war is far from over)—to explain how the North Korean state has justified and carried out its “harsh governmental rule and its accompanying human rights violations.”24 Although the report elsewhere makes brief mention of the fact that the United States has tied food aid to nuclear concessions, it described food shortages in North Korea as being irrationally “blamed on a hostile outside world” by North Korean authorities.25 Here, we would do well to take stock of analysis of the root causes of North Korea’s persistent food insecurity by David Austin, head of Mercy Corps’ humanitarian aid program to North Korea—a perspective, one would hope, not facilely dismissible as the propagandistic construction of the North Korean government:
The food security situation is a symptom of the greater problem,…which is technically that the U.S. is still at war with North Korea. And so there are sanctions on North Korea. They are not allowed to get fuel; there’s no fertilizer. And so the greater political situation has a tremendous effect on the lives of the ordinary people who are not privileged to be a part of that broader solution. They’re ordinary farmers, and they’re suffering the consequences of the non-solution to the political questions. …[U]ntil there is engagement, there’s not going to be greater solutions.26
On the conspicuous narrowness of COI’s data culture, particularly with regard to the complexity of North Korea’s food security issues, Hazel Smith observes: “[w]hat is most striking about the [UNHRC] reporting on the DPRK is the almost complete absence of reference to relevant data from other UN agencies, donor governments, and nongovernmental organizations (NGOs), to the extent that the…reporting seems unaware of the existence of reports on the DPRK from within the UN system itself.”27 Instead, the Commission appears to have relied heavily on an extremely dated account from Médecins Sans Frontières from 1998 and the testimony of former USAID administrator and current co-chairman of the conservative U.S. Committee for Human Rights in North Korea, Andrew Natsios, despite the wealth of much more discerning, rigorous scholarship and firsthand knowledge of North Korea’s food situation that has emerged in the past decade. In this regard, the Commission’s ascription of blame to the DPRK for food violations, as Smith further argues, “demonstrates a securitization of evidence and analysis through a heavy reliance on assumptions [about North Korean state-level culpability for food-related human rights violations] and a filtering of information through those assumptions,” even as “the weight of [other] UN agency reporting contradicts” those very premises.28
The COI report, it should be noted, concedes the political bias of the data culture on which it based its findings and recommendations: “The Commission is conscious of the fact that most victims and witnesses cooperating with the Commission had an overall unfavourable opinion of the DPRK’s authorities.”29 This was uncomfortably apparent in a peculiar exchange between Commission chair Kirby and a North Korean defector residing in the United States. During the October 30, 2013 public hearing in Washington, DC, Kirby repeatedly pressed Jo Jin-hye to comment upon North Korea’s hostile stance toward the COI investigation: “Now are you aware that the government of North Korea says that the type of testimony that you have given to the Commission of Inquiry today is false and that you are a defector and a person who should not be believed because you are defaming North Korea?”30 The leading nature of this question notwithstanding, Jo offered up a response that symptomatically attested to the structure of enmity and the geopolitics of unresolved war underpinning—and to no small degree compromising—the proceedings: “I am well aware. I know who my enemy and my friend are.”31
Although the Commission conducted roughly 240 confidential interviews and held four sets of public hearings, the solicited testimony of seasoned political actors long at the helm of a well-funded, transnational “North Korean human rights” industry aimed at North Korean regime-change or regime-collapse loomed large within the 372-page COI report. In particular, the report relied heavily for its framing on testimony from prominent North Korean defectors like Kang Chol-hwan, Ahn Myong-chol, Shin Dong-hyuk, Kim Hyuk, and Kim Young-soon, and the “expertise” of unabashedly right-wing South Korean, American, and Japanese “North Korean human rights” advocates like Kim Young-hwan, Andrew Natsios, Victor Cha, and Ishimaru Jiro. The insight of this cadre of “witnesses and experts” into North Korea appears frequently in the COI report, furnishing its narrative contours. In other words, despite the Commission’s assertion that all testimonies were carefully vetted for reliability and Kirby’s strained assurances that such testimonies represent “authentic voices,” the 372-page COI report troublingly allocates outsized representational value to the words and views of ultimately only a handful of institutionalized actors whose relationship to U.S. and South Korean intelligence, U.S. soft-power institutions, thinly renovated Cold War defense organizations, hawks of neoconservative and liberal varieties, conservative evangelicals, and anticommunist Koreans in South Korea and the diaspora goes completely unquestioned.32 It treats their testimony, moreover, as primary data, ascribing a false positivism to sources that “divulge their secrets at some distance in time and space from the ongoing developments inside the target they are reporting on.”33
Although the COI report offers a perfunctory account of its own methodological underpinnings, we should remark what goes unsaid: namely, the interoperability of the technologies of North Korean human rights, namely defector testimony and satellite imagery, and the technologies of war. Indeed, North Korean human rights testimony is morphologically indistinguishable from what the CIA and military intelligence agencies call “human intelligence” (Humint). As former CIA Inspector General Frederick Hitz points out: “Where it has no physical presence, the [CIA] has historically relied for humint primarily on defectors, detainees, legal travelers, opposition groups and foreign government liaison services.” That the COI report gives extensive space to defector testimony without weighing the perils of an over-reliance on this sort of informational base raises the question of the empirical nature of the North Korean human rights project. Donald MacIntyre, former Seoul bureau chief for Time magazine, observes:
North Koreans who have left their country have provided some of the best information that we have. But you can’t go to North Korea and check what they tell you. An example arose in 2004 when the BBC ran a documentary alleging that North Korea was using political prisoners as guinea pigs in chemical weapons tests. The issue is now part of the human rights agenda on North Korea. …The problem has become worse…as a result of the Japanese and Korean media’s practice of paying defectors for interviews. Paying for interviews creates an incentive to pad, or create, stories that will boost your own market value. …Bad news about evil North Korea sells.34
In his memoir The Aquariums of Pyongyang (2001), co-authored with the French anti-communist Pierre Rigoulot, Kang Chol-hwan, a major COI witness, states that Japanese and South Korean media paid him so handsomely “for opening [his] mouth” about North Korea that he “occasionally felt [he] was trading [his] experience for a story…no longer entirely [his] own.”35
Yet the question today goes beyond whether “authentic voices” like Kang’s represent the truth of North Korea. Rather, in light of the fact that approximately 26,000 North Koreans resettled in South Korea both during and after the 1990s’ North Korean famine, we might more pointedly ask whether the testimony of North Korean defectors and migrants featured in the COI report bears a sufficiently representative relationship to the diversity of views and experiences of this significant minority population. On this point, in a South Korean civil society organizational response to the COI findings, People’s Solidarity for Participatory Democracy (PSPD) highlights one of the report’s major shortcomings: “North Korean human rights issues should not be limited to the situation inside the DPRK [but should] cover human rights concerns of all North Korean people, their separated families, and relatives,” including “DPRK defectors living in the ROK.”36 It is, above all, the complexity of allegiance and nuance of perspective within this demographic that merit careful regard. Not only does this post-famine wave of migrants constitute a critical new phase in the separated-family phenomenon, with phone calls and remittances flowing, often in circuitous ways, across the DMZ, but also, the South Korean state’s past instrumentalization of North Korean defectors toward anti-communist Cold War ends, plausible when they were few and far between, is no longer a broadly applicable strategy. Moreover, that North Korean migrants face crippling labor and educational discrimination, social stigma, and diminished life chances in South Korea complicates a human rights narrative that assigns all blame to North Korea—indeed calls for other interpretive approaches which possess more explanatory power.37
Ultimately, little in the COI findings departs from a well-honed human rights narrative about North Korea, an account of neo-Orientalist sadism, depravity, and inhumanity that took shape after the collapse of the socialist bloc but crystallized in the wake of George W. Bush’s infamous designation of North Korea as part of an “axis of evil.” Even as the COI report, in its details, offers information that lends itself to multiple interpretations, the Commission’s findings, in keeping with a familiar “demonization script” toward North Korea, rehearse the standard postulates of North Korean human rights campaigns.38 These are worth restating insofar as they form the contours of a globally dominant narrative about North Korea: to wit, North Korea is unsurpassingly “evil.” The defector is the voice and representative of the North Korean people. Satellite images reveal the truth about North Korea. “North Korean human rights” singularly denotes those abuses, violations, and crimes perpetrated by the North Korean state (and in a few instances, China). It does not compass those abuses, violations, and crimes committed by other states or organizations against the North Korean people. Relative to North Korea, human rights and humanitarianism are, by and large, separate, non-intersecting tracks.39 The politicized withholding of food aid by donor nations, even if it adversely impacts, to the point of death, the North Korean people, is not itself a human rights violation.40 Six decades of U.S. and UN sanctions and of unending war are simply business as usual and not themselves human rights violations; any argument to the contrary is the stuff of North Korean propaganda. The violation of the right to peace and the commission of the crime of aggression are the least consequential of human rights in the international human rights regime. The Korean War is a mere footnote.
[The remainder of this article and the footnotes can be read on the Asia-Pacific Journal site.]