(d) Criminalization of coping mechanisms

610. 
     According to the WFP, food insecure households employ four types of consumption coping strategies.
     

• 
  First, households may change their diet. For instance, households might switch food consumption from preferred foods to cheaper, less preferred substitutes.
  
• 
  Second, households can attempt to increase their food supplies using short-term strategies that are not sustainable over a long period. Typical examples include borrowing or purchasing on credit. More extreme examples are begging or consuming wild foods, immature crops, or even seed stocks.
  
• 
  Third, if the available food is still inadequate to meet needs, households can try to reduce the number of people that they have to feed by sending some of them elsewhere (for example, sending the children to a neighbours’ house when those neighbours are eating).
  
• 
  Fourth, and most common, households can attempt to manage the shortfall by rationing the food available to the household (cutting portion size or the number of meals, favoring certain household members over others, or skipping whole days without eating). ⁹⁰²
  

611. 
     In times of food shortage, some of these coping mechanisms were encouraged by the DPRK authorities. This included the consumption of wild foods, despite the medical risks associated with that strategy. However, the authorities prohibited the population from resorting to the most efficient coping mechanisms, such as movement in search of food, trade and other similar activities, in order to preserve their control over the population.
     

612. 
     During periods of food shortage, it is usual for people to move in search of food. However, the strict restrictions on freedom of movement imposed in the DPRK, which were maintained even during the worst period of mass starvation, denied the population the opportunity to effectively pursue this option.⁹⁰³
     
613. 
     In the DPRK, any travel within the country requires a travel permit delivered by the local authorities. Persons traveling without a permit are subject to arrest, repatriation to their home county and punishment.⁹⁰⁴ When the PDS was working, even with inadequate rations, people tended to remain in their place of residence in order to access PDS rations. However, when the PDS collapsed the authorities were unable to exercise the same level of movement control as before. Desperate people started moving around the country in search of food in order to survive. Instead of abolishing internal travel restrictions, people were still prohibited from leaving their home province without a permit during the famine. In December 1996, Kim Jong-il warned that the incipient population movement was causing chaos and disorder in the country and ordered the government to immediately take all necessary actions to prevent it.⁹⁰⁵ Authorities established a network of ad hoc detention facilities to deal with illegal internal movement, including the movement of street children and children orphaned by the famine. ⁹⁰⁶
     
614. 
     The famine also created a surge of desperate people fleeing to China that started in the mid-1990s. Many DPRK citizens sought help from ethnic Korean relatives living in Chinese provinces bordering the DPRK. Others sought to work in China for food or money, which they used to buy for themselves and their families.⁹⁰⁷ Instead of facilitating such coping mechanisms, the government used punishment and violence to deter people from crossing the border.
     
615. 
     The Commission collected a large amount of testimony from people who went to China in search of food and were subsequently repatriated and imprisoned.⁹⁰⁸
     

• 
  Ms Jo Jin-hye told the Commission that her father and pregnant mother were going back and forth to China looking for food. They were arrested, detained and tortured shortly after Kim Jong-il publicly called for stricter enforcement of the prohibition on crossing the border with China.
  

• 
  Mr Kim Gwang-il described how he secretly travelled to China to sell pine mushrooms since this was the only way for him to survive. Upon his forced repatriation from China, he was detained and tortured by the Ministry of People’s Security. Based on an unfair trial, he was imprisoned at Ordinary Prison Camp (kyohwaso) No. 12 at Jonggo-ri.⁹¹¹
  

616. 
     Despite the deaths of hundreds of thousands of people during the late 1990s, the authorities continued to apply criminal punishment for cross-border movement. Border guards were allowed to shoot to kill anyone crossing the border illegally, a policy that remains in place.⁹¹² Especially harsh treatment was reserved for DPRK citizens who approached citizens of the ROK or Christian churches for help while in China.⁹¹³ Periods of imprisonment for people crossing for food varies from two to five years. Reportedly, in 2000, when the famine had already peaked, Kim Jong-il issued a decree to treat those who only crossed the border in need of food with a degree of leniency. However, this decree was only in force for a few months. Even during that time, people forcibly repatriated from China were still subject to arrest and punishment. ⁹¹⁴
     
617. 
     The Commission notes that the DPRK Government apparently never contemplated pursuing the option of requesting the ROK to temporarily open the inter-Korean border so as to allow its starving citizens to cross into the ROK, where many could have received help from relatives and fellow Koreans.
     

618. 
     For a long period, the DPRK government failed to officially acknowledge the economic changes occurring in the country including the de facto marketization. At most, officials described them as temporary emergency measures.⁹¹⁵ This position explains the DPRK government’s repeated attempts to limit or even criminalize market activities. The government has been reluctant to accept the development of the markets despite their importance for people in need of food,because this was a mechanism in the country that fell outside its control.
     
619. 
     In the 1999 Criminal Code, the chapter on “Offenses against the management of the Socialist Economy” comprised only eight articles. In 2004, the chapter was renamed “Offences against the management of the Economy” and expanded to 74 articles. Article 110 was introduced into the Criminal Code making it an offense to gain large profits by engaging illegally in unfair commercial activities. The offense is subject to two years of imprisonment in a labour training camp. In 2007, a series of “additional clauses” were introduced by way of a decision issued by the Presidium of the Supreme People’s Assembly.⁹¹⁶ That decision introduced offenses such as the crime of illegal business operations. Extremely grave cases of smuggling jewellery and precious metals and illegally selling the state’s resources were made subject to the death penalty.
     
620. 
     The DPRK penal system has played a central role in the government’s response to the coping strategies that DPRK citizens adopted in order to address the severe shortage of food. During the famine, the DPRK established an extensive system of detention facilities known as labour training camps (rodongdanryundae).⁹¹⁷ These and other short-term forced labour detention facilities were used to incarcerate those caught crossing the border into China, those involved in internal movement without permits, and those involved in market activity. The 2004 reform of the Criminal Code regularized these facilities. It established “labour training” for up to two years as the punishment for a growing number of economic and social crimes.
     

• 
  One witness commented that people were trapped in an impossible situation. Those who only did their work following the state’s directions died from malnutrition. Those who tried to do something else to survive – such as engaging in market activities – likely got arrested.⁹¹⁸
  

621. 
     One aspect of the command-and-control response to the famine and its aftermath was the use of the police and the military to reassert authority over both the cooperative farms and the industrial workplace. In August 1997, the authorities issued a decree on the hoarding and theft of food. This decree stipulated the execution of any individual involved either in stealing grain or trading in it. Military units were deployed to farms to make sure that hungry farmers did not divert part of their farm’s production in order to secure their own survival.
     

• 
  One woman testified that she witnessed five public executions during the famine. The officials announced how much food had been stolen or wasted by the victim concerned. Then, the person was shot in the head.⁹¹⁹
  
• 
  Another woman testified that her husband was arrested for trading oil in 1996. He was sentenced to 11 years of imprisonment in an ordinary prison camp (kyohwaso). While he was in prison, she did not have money to bring him food. He died after a year in detention from hunger and hard labour. Subsequently, the witness’s child starved to death, followed by the witness’s mother and father. In December 1997, she crossed to China to find food and was sold into a forced marriage with an ethnic Korean Chinese man.⁹²⁰
  

622. 
     The authorities also maintained strict control over communications during the famine. They prohibited people from contacting their relatives abroad for assistance. This prohibition remains in place. However, many DPRK citizens circumvent it by illegally contacting relatives abroad through so-called “brokers” or by using Chinese mobile phones that work in the proximity of the Chinese border. ⁹²¹ Through brokers, people can also illegally receive remittances from relatives abroad. Pursuing help in this manner is extremely risky, and those caught are subject to severe punishment.
     

• 
  One man testified that, in 2009, he was caught by the State Security Department (SSD) while calling abroad from his Chinese mobile phone. He was accused of spying, beaten and tortured. He stated that the SSD uses sophisticated electronic devices to trace mobile phones.⁹²²
  

623. 
     In accordance with articles 2 (1) and 11 (2) of the ICESCR, each State has the obligation to ensure freedom from hunger individually and through international assistance and cooperation. If a State is unable to provide its population with adequate food, it must take all possible steps to ensure that people in its territory are free from hunger, including through proactively seeking external assistance. According to the Committee on Economic, Social and Cultural Rights, a State claiming that it is unable to carry out its obligation of ensuring freedom from hunger for reasons beyond its control, has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food.⁹²³
     
624. 
     In this regard, States are also under an obligation not to arbitrarily reject humanitarian assistance. A number of parameters can be used to determine an arbitrary rejection of humanitarian assistance. States fail to respect their obligations if they reject assistance offered without providing any reasons, or if the reasons provided are based on errors of fact (for example, a denial of humanitarian needs without a proper assessment). States also act arbitrarily if they deny access for reasons that are not in line with their international obligations, for example, if a state rejects assistance offered in line with the humanitarian principles of humanity, impartiality, neutrality and independence despite being unable to ensure the necessary assistance through other sources.⁹²⁴ Any diversion of international food aid contrary to the principle of distributing aid without discrimination based on humanitarian need also constitutes an arbitrary denial of aid and hence a violation of human rights including the right to food.⁹²⁵
     
625. 
     Since the arrival of the first relief agencies in the mid-1990s, international organizations and non-governmental organizations have been working in extremely difficult conditions imposed by the DPRK authorities.⁹²⁶ The Commission finds that the DPRK government has imposed movement and contact restrictions on humanitarian actors that unduly impede their access and are not justified by legitimate humanitarian or security considerations. Moreover, the authorities have deliberately failed to provide aid organizations with access to reliable data, which, if provided, would have greatly enhanced the effectiveness of the humanitarian response and saved many lives.
     
626. 
     DPRK authorities resisted initial requests from international relief organizations to provide assistance to the northeast part of the country. World Food Programme aid did not reach the east coast before 1997. During the late 1990s, only one-fifth of the WFP’s total aid went to feed the people of an area that contains one-third of the DPRK’s total population.⁹²⁷ The Commission received various explanations for this phenomenon, including the location of political prison camps and sensitive military installations in some of the affected counties.⁹²⁸ However, the Commission also notes that humanitarian access was denied to an entire area, where populations of low songbun are concentrated.⁹²⁹ Exhibit W-2, displayed below, shows that, in 1995-1996, the DPRK government denied humanitarian access to most of the northeastern provinces where people were dying in very large numbers from hunger and starvation. The four provinces with no access to humanitarian aid (North and South Hamgyong, Ryanggang and Chagang) also correspond to those where the PDS distribution was first stopped.⁹³⁰
     
     
     

F
igure 10.

627. 
     The political implications for the DPRK of accepting foreign assistance, especially from countries considered as “enemies” were frequently considered to outweigh the plight of the population.
     

• 
  At the Washington Public Hearing, Andrew Natsios told the Commission about problems relating to the delivery of aid provided by the United States of America.
  

628. 
     The restrictions imposed by the DPRK on humanitarian actors have contravened, and continue to contravene, the basic principles of humanitarian engagement. Between 1998 and 2000, a number of reputable humanitarian organizations, including Médecins sans Frontières (MSF), Oxfam, CARE and Médecins du Monde, stopped their operations in the DPRK, because they considered their engagement to be unsustainable under the conditions imposed by the DPRK authorities. In 2002, Fiona Terry, then research director of MSF, summarized the reasons why humanitarian organizations like MSF had stopped their operations in the DPRK:
     

629. 
     The lack of physical access to populations in need in the DPRK has prevented humanitarian actors from properly assessing the situation so as to carry out their operations most effectively.⁹³⁴ Faced with the problem that aid apparently did not reach the most vulnerable populations, a number of humanitarian agencies adopted a “no access-no aid” policy, which led to some improvement regarding the access given to agencies to monitor aid distribution.
     
630. 
     The number of counties the WFP could access has changed over time. The latest map produced by the WFP in March 2013 (see figure below) shows it can access 82 of about 200 counties.⁹³⁵ The entire Chagang Province which has the highest level of acute malnutrition and stunting (alongside Ryanggang Province), is not covered by WFP operations.
     

631. 
     The Committee on Economic, Social and Cultural Rights, the Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child have all called on the DPRK to provide vulnerable groups, including rural and economically disadvantaged women and children, access to food aid and other international assistance.⁹³⁷ In the context of the DPRK, pregnant and lactating women, children, and elderly people are considered to be especially vulnerable.⁹³⁸ Information received by the Commission, however, indicates that food aid and other humanitarian assistance failed to reach targeted groups in many cases. In particular the Commission received information from former DPRK citizens, former humanitarian staff deployed to the DPRK and other sources that aid often did not reach those children who are most in need of assistance, including street children.
     
632. 
     In 2000, Action Against Hunger (AAH) decided to stop its programme to provide humanitarian aid to children in the DPRK, because the authorities denied them access to the most vulnerable children. It explained its decision as follows:

     The number of children present in the facilities [that received AAH aid] was less than the quoted official figures, even though all AAH visits were announced in advance. The malnutrition detected in these facilities was around 1 per cent, although the nutrition survey conducted by UNICEF, WFP and the European Union showed 16 per cent of malnutrition amongst children. Most of the malnutrition cases witnessed by our team were amongst children with no access to any facilities. Those who were especially hard hit were the “street children”, many of whom were between 3 and 4 years old, and found wandering alone, while visibly very weak and fighting to collect food. Confronted with this situation and convinced that the aid channelled through government-run facilities did not reach the most vulnerable, Action Against Hunger negotiated with the authorities to set up soup kitchens, outside the official facilities, targeting the most high risk group of children. But the conditions to implement this programme have been refused by the North-Korean authorities. We are convinced that the international aid flowing into North-Korea is not reaching the people most in need. We were denied authorization to visit the poorest families, where we suspect that children are confined to their homes, cut off from any assistance and essentially condemned to death. This is extremely revolting as the lives of these children could be easily saved with access and appropriate assistance.”⁹³⁹

     
     

In September 1998, Médecins Sans Frontières discontinued its operations in the DPRK citing a “high level policy change to further restrict and limit effective humanitarian aid, which makes it impossible to deliver aid in a principled and accountable manner.” MSF had sought to target particularly vulnerable groups such as homeless and orphaned children. Instead the DPRK authorities insisted that the most effective type of medical and nutritional assistance was for "MSF to pay deep attention to provide pharmaceutical raw materials.”⁹⁴⁰

633. 
     Testimony received by the Commission from humanitarian staff, who had worked in the DPRK at different points in time, indicated that there were strong doubts that the people and children presented to them were those most in need, even in the areas they were allowed to access. Some pointed out that these visits were “well staged performances”.⁹⁴¹ Others stated that despite the large amounts of international aid given to the DPRK, the most vulnerable were not reached.⁹⁴²
     
634. 
     The DPRK authorities have continually prohibited effective monitoring of humanitarian assistance by the international providers of assistance. For humanitarian organizations who decided to continue working in the DPRK, it was very difficult to understand the situation inside the country. In addition to the lack of physical access, international relief organizations, such as the WFP, were not allowed, to have any Korean speaking staff. Instead, local Korean interpreters were provided by the DPRK authorities. Apart from raising obvious questions about the independence and impartiality of such staff, this also affected the quality of humanitarian work, since the local staff provided did not have the specific technical abilities to manage an aid effort.⁹⁴³ United Nations requests for permission to conduct a random nutritional survey of children in the DPRK were repeatedly denied.⁹⁴⁴
     

• 
  At the Washington Public Hearing, Andrew Natsios, who served as the United States Agency for International Development (USAID) administrator from 2001 to 2006, described the work of USAID in the DPRK in the 1990s:
  

635. 
     Reportedly, local officials have been removed from their posts for being too cooperative with international agencies.⁹⁴⁶ In 1998, MSF stated that the DPRK’s priority was “more to preserve the self-sufficient ideology than to provide effective and accountable assistance to those who need it most.”⁹⁴⁷
     
636. 
     Some observers have claimed that the situation in terms of access and monitoring inside the DPRK has improved over the years for humanitarian organizations. Some humanitarian agencies have been able to progressively access additional counties. Furthermore, the use of Korean language speaking not selected by the DPRK is now allowed for certain organizations. Small amounts of progress have been made in the field of monitoring food aid. However, 20 years after humanitarian agencies began their work in the DPRK, humanitarian workers still face unacceptable constraints impeding their access to populations in dire need. According to United Nations Country Team in the Democratic People’s Republic of Korea,
     

6. Non-utilization of maximum available resources

637. 
     Article 2 (1) of the ICESCR states that “each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (emphasis added).
     
638. 
     The concept of “progressive realization” describes a central aspect of states’ obligations in connection with economic, social and cultural rights under international human rights treaties. At its core is the obligation to take appropriate measures towards the full realization of economic, social and cultural rights to the maximum of a state’s available resources. The reference to “available resources” reflects a recognition that the realization of these rights can be hampered by a lack of resources and can be achieved only over a period of time. Equally, it means that a state’s compliance with its obligation to take appropriate measures is assessed in light of the resources, financial and otherwise, available to it.⁹⁴⁹ However, the concept of progressive realization must not be misinterpreted as discharging the state from any obligations until they have sufficient resources. On the contrary, the treaties impose an immediate obligation to take appropriate steps towards the full realization of economic, social and cultural rights. A lack of resources cannot justify inaction or indefinite postponement of measures to implement these rights. Irrespective of the resources available to it, a state should, as a matter of priority, seek to ensure that everyone has access to, at the very least, a minimum level of rights, and target programmes to protect the poor, the marginalized and the disadvantaged. A state cannot plead resource constraints to justify its failure to ensure minimum essential levels of socio-economic well-being, including freedom from hunger, unless it can demonstrate that it has used all the resources at its disposal to give priority to essential economic and social needs.⁹⁵⁰
     
639. 
     Based on the body of testimony and submissions received, the Commission finds that the allocation of resources by the DPRK has grossly failed to prioritize the objective of freeing people from hunger and chronic malnutrition, in particular in times of mass starvation. The state has neither prioritized the purchase of the food necessary for the survival of many in the DPRK, nor investment in agriculture, infrastructure and other ways of improving the availability and accessibility of food in the country. FAO and WFP note that the continuous inability to achieve the official Government target of 573 grams of cereal equivalent per person per day in any given year points not only to issues of food availability, but also to broader supply chain constraints such as storage, transport and commodity tracking.⁹⁵¹
     
640. 
     Testimony and other information received by the Commission show that the DPRK continues to allocate disproportional amounts of resources on its military, on the personality cult of the Supreme Leader, related glorification events and the purchase of luxury goods for the elites.
     

641. 
     The DPRK maintains one of the world’s largest standing armies, comprising around 1.2 million people. This represents the world’s highest ratio of military personnel to the general population. Given the secretive nature of the state, figures displaying actual military spending figures are difficult to obtain. Official sources state that around 16 per cent of the total state budget is devoted to national defence.⁹⁵² Other sources estimate that it is around a quarter of the Gross National Product.⁹⁵³
     
642. 
     Instead of shifting resources to address urgent needs during the course of the famine in the late 1990s, Kim Jong-il placed even more emphasis on the military in line with the “Military First” doctrine (Songun).⁹⁵⁴ An official broadcast from the Korean Central Broadcasting Station explained this policy:
     

643. 
     A 2003 editorial published in Rodong Sinmun, the newspaper of the Workers’ Party of Korea, similarly notes:
     

644. 
     Expert analysis presented to the Commission shows that a marginal redistribution of state military expenditure towards the purchase of food could have saved the population from starvation and malnutrition. According to economist Marcus Noland, based on the last FAO/WFP Crop assessment, the DPRK has an uncovered grain deficit of 40,000 metric tons. According to the International Monetary Fund, in September 2013, the price of rice was approximately USD 470 per metric ton and the price of corn was around USD 207 per ton.⁹⁵⁷ Basing his analysis on United Nations data, Mr Noland estimates that the size of the DPRK economy was $12.4 billion in 2011.⁹⁵⁸ He states that the reallocation of resources required to close the grain gap is therefore less than 0.02 per cent of national income. If the estimation that 25 per cent of national income is being used for the military is correct, then the grain shortfall could be addressed by cutting the military budget by less than 1 per cent.⁹⁵⁹
     
645. 
     Marcus Noland further estimates that even at the height of mass starvation, the amount of resources needed to close the food gap was only in the order of USD 100 million to USD 200 million. This represented the value of about 5 to 20 per cent of revenue from exported goods and services or 1 to 2 per cent of contemporaneous national income. At the Washington Public Hearing, he stated,
     

• 
  “[W]hile the amount of grain needed to close the gap [during the 1990s famine] was much larger, the price of grain in the 1990s was much lower than it is now. So at the famine’s peak, the resources needed to close that gap were only on the order of a hundred to two hundred million dollars depending on how you analysed data. Even during the famine period, the North Korean government had resources at its disposal if it had chosen to use them, to maintain imports and avoid that calamity.”⁹⁶⁰
  

646. 
     Even a delay in purchasing military equipment and using foreign currency instead to buy food on the international markets may have saved a very large number of people. In 1994, when the food shortage was already known to the authorities, the DPRK reportedly bought a number of submarines.⁹⁶¹ In 1999, at the same time that it was cutting commercial grain imports to less than 200,000 metric tons, the government reportedly used its foreign currency for the purchase of 40 MiG-29 fighter jets from Belarus and 8 military helicopters from Kazakhstan.⁹⁶²
     
647. 
     In 2005, the United Nations Secretary-General noted that the authorities of the Democratic People’s Republic of Korea are under a responsibility to reduce military/defence expenditure and ensure equitable re-allocation of resources to respond effectively to the food crisis and other areas needing development.⁹⁶³
     
648. 
     However, the Commission has received no indication that the DPRK has changed its approach of prioritzing the military over humanitarian concerns. Instead, the current Supreme Leader Kim Jong-un has insisted that “Military First” remains one of the guiding principles of the DPRK. In one of his first public speeches as the Supreme Leader, delivered on 15 April 2012, Kim Jong-un emphasized: “In order for us to eternally glorify the dignity of military-first Korea and successfully accomplish the cause of building a powerful socialist state, first, second, and third, we must strengthen the people’s army in every way.”⁹⁶⁴
     
649. 
     In a report to the Supreme People’s Assembly on the 2012 state budget, Minister of Finance Choe Kwang-jin mentioned that only “38.9 per cent of total expenditure was spent for enforcing popular policies and measures for social culture under socialism such as the universal free compulsory education system, free healthcare, social insurance and social security, recuperation and relaxation systems as well as those for development of literature and art and building of a sports power.”⁹⁶⁵ While Mr Choe’s report focuses on increased expenditure in areas that could positively impact economic, social and cultural rights, it vaguely mentions that “some of the total state budgetary expenditure went to national defence.”⁹⁶⁶