As the Malaysian police seek further evidence to back their suspicions that the North Korean government was behind last month’s assassination of Kim Jong-nam in Kuala Lumpur, international investigators are gathering testimony to put top North Korean leaders on trial for a much broader range of heinous crimes.
The UN special rapporteur on human rights in North Korea on Monday called on the world to bring members of the dictatorial regime to justice at the International Criminal Court for crimes against humanity.
The international community “must be guided by the pursuit of justice and accountability as a core tenet of the United Nations," said Tomas Ojea Quintana, introducing a report on accountability to the UN Human Rights Council in Geneva.
The report is the latest step in a push by international and civil society organizations to identify and prosecute perpetrators of what a 2014 United Nations report called “unspeakable atrocities” in “a state that does not have any parallel in the contemporary world.”
Since opening in 2015, the Seoul branch of the UN Human Rights Office has been collecting evidence that could one day be used in court proceedings.
With isolated North Korea completely off-limits to outside inspectors and the authorities in Pyongyang refusing to have anything to do with the investigation, staff must rely on defectors, NGO reports, and satellite imagery to work out what is going on inside the secretive country.
"It's a bit like putting together a puzzle, you get testimonies here and there," says Signe Poulsen, head of the office. “One thing is for sure,” she adds. “If we don’t put down the groundwork for some positive response to this human rights situation, it is very likely nothing will happen.”
The effort to gather evidence in hopes of an eventual chance to use it against Kim Jong-un and his lieutenants may seem Quixotic. But it is essential, says Australian Justice Michael Kirby, who headed the 2014 inquiry. “Accountability is the name of the game in human rights,” he told the UN Human Rights Council in Geneva last week. “Otherwise it’s all rhetoric.”
And history can take sudden twists, points out Alex Whiting, a professor of international criminal law at Harvard Law School. At one time, he recalls, few expected anyone ever to face justice for crimes committed in Cambodia or the former Yugoslavia. International tribunals have since tried and sentenced perpetrators of crimes against humanity and war crimes during those conflicts.
“The lessons of these last two decades is that the political will and the opportunity to set up institutions to pursue accountability ... or to have referrals to the ICC can sometimes occur many years later and that political developments can open up those opportunities,” says Professor Whiting.
Luis Moreno Ocampo, the first prosecutor at the ICC, who indicted Muammar Gaddafi and Sudanese president Omar Bashir, among other leaders, agrees.
“It’s true, things change,” he says. “Dictators are not forever.”
The UN Human Rights Office in Seoul, whose staff of four have interviewed more than 150 North Korean defectors over the past two years, is following a trail blazed by local NGOs that have carried out similar work for years.
The Database Center for North Korean Human Rights has recorded more than 65,000 individual rights violations since 2003, and says repression has gotten even worse since the current dictator took power following the death of his father, Kim Jong-il, in 2011.
“This trend is likely to be associated with Kim Jong-un’s efforts to consolidate his power, eliminate individuals who may pose a threat to his authority, and tighten border controls,” says Teodora Gyupchanova, a researcher with the NGO.
“North Korea definitely represents a unique case, but it should not be excluded from the standard treatment and accountability-seeking mechanisms existing in the international system,” she adds.
North Korea Strategy Center, another Seoul-based nonprofit, has lobbied strongly for action by the ICC, highlighting the assassination of Kim’s sibling and the execution of his uncle Jang Song-thaek in 2013.
“Our information dissemination work, reporting Kim Jong-un to the ICC, and our other projects are making North Korea hurt,” says NKSC founder Kang Cheol-hwan, who spent 10 years in Yodok concentration camp.
Mr. Kang believes he will live to see the North Korean leader face trial.
“This regime has shown extreme fragility and many signs of change through defections of high-level defectors as well as government responses to efforts of civilian groups,” he says.
Daunting hurdles, however, stand in the way of any prosecution. While North Korea does not recognize the ICC, the UN Security Council can refer nonmember countries to the court, as it did in the cases of Libya and Sudan. But China would be likely to veto any such move against North Korea, fearing the prospect of instability on its border.
The Chinese government did not cooperate with the authors of Monday's report outlining possible ways of bringing North Korean leaders to justice that Mr. Ojea presented.
“It’s not a legal problem, it’s a political problem,” says Mr. Moreno Ocampo. “Basically, the biggest countries are not happy with North Korea, but yet not ready to destabilize North Korea.”
Even if Beijing could be convinced to get on board, Pyongyang would certainly refuse to cooperate with any indictment.
“If people were charged by the court, it couldn’t go to North Korea and start arresting people. It depends on state cooperation and North Korea is not going to arrest people,” says Professor Whiting.
Without its own police force, the court would have to rely on cooperative states to arrest suspects while they were traveling outside North Korea. Other possible scenarios involve regime collapse or a revolution. While North Korea’s disintegration has been wrongly predicted for decades, activists say they are playing a long game and readying themselves for a judicial opportunity if it comes.
“As North Korean human rights organizations … continue to steadily damage the North Korean regime, we believe the Kim dynasty will eventually be knocked down,” says Kang.
“Although it is not one strong blow,” he adds. “Steadily attacking and damaging the places where the regime already hurts is exceedingly important.”