Conditions of forced labour vary between different types of detention facilities. The high threshold of enslavement established by international criminal law would not be reached everywhere in the ordinary prison system of the DPRK. However, the type, duration and intensity of forced labour exacted from inmates in the ordinary prison camps (kyohwaso), especially in prison mines, does meet the enslavement threshold. In coming to this finding, the Commission takes into account the overall context of deliberate starvation, inhumane living conditions and harsh punishments imposed on those who fail to fulfil their work quotas or who attempt to flee. The Commission therefore firmly rejects the suggestion by the DPRK in its submission to the Human Rights Committee that conditions in the ordinary prison camps of the DPRK meet international standards.1584
(e) Forcible transfer of a population
The crime against humanity of forcible transfer of a population is defined in international criminal law as the forced displacement of a population by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.1585
Inmates in ordinary prisons in the DPRK are imprisoned based on the assumption of personal guilt. However, guilt by association punishment is still systematically applied to the families of ordinary prison camp (kyohwaso) inmates, in particular where the family resides in Pyongyang. Because of the crime of their relative, such families are considered a bad songbun population group. Therefore, they are systematically expelled from Pyongyang and forcibly transferred to one of the more remote provinces, where they experience much harsher socio-economic conditions.1586 The Commission notes the large size of Ordinary Prison Camp (kyohwaso) No. 4 that houses thousands of inmates from Pyongyang. It therefore finds that thousands of DPRK citizens at least have been banished from Pyongyang on the basis of their family ties with convicted individuals.
The DPRK’s practice of collectively banishing family members who were not involved in the crime of their relative has no basis under the DPRK’s formal laws and is contrary to international law. The Commission therefore considers that such banishment amounts to the crime against humanity of forcible transfer of a population.
2. Systematic and widespread attack pursuant to State policy
In the DPRK, the criminal justice system and its prisons serves not merely to punish common crimes. They also form an integral part of the state’s systematic and widespread attack against anyone considered a threat to the political system and its leadership. Many inmates of ordinary prisons in the DPRK are, in fact, political prisoners. The political function of the ordinary justice system, which was emphasized by Kim Il-sung and Kim Jong-il, is formally acknowledged in the DPRK present Constitution and Code of Criminal Procedure. These laws require the state and its courts to staunchly oppose and subdue class enemies.1587 The forced labour output of the prisons, including precious ores and other goods destined for export, provide the state with important foreign currency earnings needed to sustain the political system and the elites on whose loyalty the system relies. The ordinary prison system and the way it is operated, therefore serves two central political objectives.
The inhumane acts that detainees suffer within the ordinary prisons are not isolated incidents that can be traced back to individual guards or particular facilities. The Commission finds that, across the vast prison system, inhumane acts follow regular patterns that victimize tens of thousands of inmates at any point in time.
Deliberate starvation and forced labour follow the same patterns in different prisons across the country, making it likely that acts are based on orders originating at the central level. Very similar types of punishment practices and torture facilities (e.g. tiny solitary confinement cells) are used across different detention installations. According to the Commission’s findings, thousands of ordinary prison inmates die every year in the DPRK from starvation, exhaustion, beatings, preventable work accidents and curable diseases.1588 The DPRK authorities, including at a central level, are aware of this, not least because starvation levels are regularly measured in prisons. However, the authorities have not taken steps to change the underlying policies. In accordance with article 30 of the DPRK Criminal Code, the civil rights of ordinary prison camp (kyohwaso) inmates are considered to have been partially suspended. This further encourages abuse of the inmates.
Patterns of impunity also indicate that inhumane acts committed against prisoners represent official policy. Although two of the primary pillars of the criminal justice system, the Ministry of People’s Security (MPS) and the Office of the Prosecutor, administer and oversee the ordinary prison system, the DPRK authorities are not making any proper efforts to end impunity for perpetrators of torture, rape, executions and other inhumane acts against prisoners.
Instead, the DPRK has taken concerted steps to conceal violations in the prison system from its population and the international community. Furnaces and mass graves have been set up in or close to prison facilities to dispose of the bodies of those who die in prison to prevent family members from discovering the fate of their incarcerated relative. Where they have cooperated with United Nations human rights mechanisms, DPRK delegations have provided grossly inaccurate information about the size of the prison system and the conditions of treatment, in response to specific questions. The DPRK has also consistently denied access to prisons (except for occasional visits to certain model prisons). The repeated requests by this Commission to have access to the DPRK, including to its prison facilities, have all been ignored or rejected.
D. Crimes against humanity targeting religious believers and others considered to introduce subversive influences
Based on the body of testimony and other information received,1589 the Commission finds that persons who are considered to introduce politically or ideologically subversive influences are subject to crimes against humanity.
Among the foremost victims are religious believers who practise outside the small number of state-controlled religious institutions. In the contemporary DPRK, such religious believers comprise independent communities of Christians who usually come into contact with the religion through Korean-language churches operating in the border areas of China.
Others falling into the group of persons introducing subversive influences include those who have unauthorized personal or telephonic contact with people from the Republic of Korea; watch and circulate foreign films, news and entertainment programmes; or follow television programmes and radio broadcasts from abroad.
1. Inhumane acts
The Commission finds that the following inhumane acts have been and are still being committed:
The authorities consider religion, movies and broadcasts emanating from countries they consider to be hostile states, and especially unauthorized contact with the ROK and its citizens, to be politically subversive. The state considers those who engage in such activities to be guilty of what the Criminal Code terms “anti-state and anti-people crimes”. This is notwithstanding the fact that their conduct is within the protected sphere of international human rights law. If caught, they are imprisoned for interrogation purposes for weeks or months without being brought before a judge in violation of article 9 of the ICCPR. Thereafter, they may be sentenced to a prison facility in a trial that falls short of the requirements established by article 14 of the ICCPR. Or they may be sent to a political prison camp without trial.1590
Severe beatings, prolonged and deliberate starvation and other acts of torture, are systematically imposed on people accused of introducing subversive elements into the DPRK. The purpose is to extract confessions and to incriminate others.
(b) Murder
In cases considered particularly grave by the authorities, Christians and distributors of foreign films and materials are executed. The Commission finds that such executions amount to murder, even where they are based on a judicial sentence, because the underlying conduct is protected by international human rights law and does not qualify as one of the ‘most serious crimes’ to which article 6 of the ICCPR limits the application of the death penalty.1591
(c) Persecution
Christians are also victims of persecution. The violence and heavy punishment inflicted on those who practise their religion outside the state-controlled churches are at the core of the state-sponsored discrimination that Christians experience. Their persecution is also shaped by an overall discriminatory environment where the DPRK vilifies Christianity in its propaganda and education, effectively prohibits the import and possession of religious materials, seeks to infiltrate underground churches, and subjects the few allowed to practise in state-approved churches to intense surveillance and severe restrictions on how they can practise their religion. Christians are also restricted to the bottom hostile class rungs of the Songbun system which adds additional layers of disadvantages to their experience of discrimination.
2. Systematic and widespread attack pursuant to State policy
The Commission finds that the systematic and widespread attack of the state against populations that are considered a threat to the political system and leadership of the DPRK extends to those following religion or introducing other subversive influences. These groups are considered to pose a particular threat because their conduct challenges the monopoly on information and ideological formation asserted by the Workers’ Party of Korea and its leadership. In the case of Christians, the state is also pursuing the additional political objective of preventing the reintroduction of independent Christian communities. Such communities were eradicated in past purges.
State authorities commit considerable resources to enforcing their policy to ensure the arrest, capture and punishment of Christians and others considered to introduce subversive influences. As a matter of standard protocol, anyone repatriated from China is systematically screened to find Christians and other persons who had direct contact with churches and/or ROK citizens. According to the findings of the Commission, the SSD, MPS and KPA Military Security are carrying out a coordinated crackdown on the inflow of foreign movies and have set up joint inspection groups for this purpose, in accordance with orders that apparently emanate from the Supreme Leader himself. On behalf of the National Defence Commission, the highest decision-making body in the state, a proclamation has been issued demanding that the population report to the security forces anyone watching or distributing foreign films and television programmes. Customs authorities systematically search incoming goods to find foreign movies or devices capable of receiving foreign broadcasts. SSD inspection teams use sophisticated technology to detect the use of unauthorized Chinese mobile phones.
DPRK authorities systematically seek to hide the persecution of Christians who practise their religion outside state-controlled churches from the international community. They do this by pointing to a small number of state-controlled Churches as the exemplification of religious freedom and pluralism within the country.
E. Crimes against humanity targeting persons who try to flee the country
Based on the body of testimony and information received,1592 the Commission finds that crimes against humanity have been and, are still being committed, against persons who try to flee the DPRK, including against persons forcibly repatriated from China.
The Commission finds that the following inhumane acts have been and are still being committed:
(a) Imprisonment
As a matter of standard protocol, the SSD and MPS systematically detianed persons who are caught trying to flee the DPRK, or who are forcibly repatriated, for interrogation purposes, often for several months. During this phase, detainees are generally not brought before a judge in accordance with article 9 (3) of the ICCPR. They also have no opportunity to challenge the lawfulness of their detention in a court, as is required by article 9 (4) of the ICCPR.
The detainees who can convince the SSD and MPS interrogators that they left the DPRK to find work or gain support from relatives living in China are punished (usually without trial) with shorter terms of imprisonment. Since they are punished for pursuing the only available way to exercise their right to leave their own country, the punishment occurs without a reason that would be compatible with international law.
Those found to have practised the Christian religion or to have had contact with persons from the Republic of Korea are imprisoned, on the basis of an unfair trial or no trial at all, in ordinary or political prison camps.
(b) Torture and murder
According to the findings of the Commission, officials of the State Security Department employ severe beatings, deliberate starvation and other means of torture against repatriated persons in order to identify those who have had contact with Christian churches and ROK nationals while abroad. Repatriated persons regularly die in detention as a result of beatings and starvation. In many cases, their deaths amount to murder since the perpetrators are aware that the harm they inflict is so grave that death will ensue in the ordinary course of events.
Border guards remain authorized to shoot to kill persons who cross the DPRK border without permission. Such killings amount to murder. They cannot be justified as legitimate border control measures, because they serve to uphold a de facto total travel ban on ordinary citizens that violates international law. Furthermore, the intentional taking of life for purposes of preventing the unauthorized crossing of a border is grossly disproportionate. International law only allows the intentional use of lethal force, where strictly necessary to protect life from immediate threats.1593
(c) Rape and other forms of sexual violence
According to the Commission’s findings, repatriated women who become pregnant while in China are subject to forced abortion. This amounts to sexual violence of a gravity that meets the threshold of crimes against humanity. The forced abortions imposed on repatriated and detained women generally also constitute torture.1594 In cases of infanticide, the crime of murder is being committed. The widespread occurrence of these crimes is facilitated by the climate of impunity that prevails in the interrogation detention facilities that process repatriated persons. The same climate of impunity allows rape and other acts of sexual violence to be committed by individual guards and to go unpunished. In relation to women repatriated from China, the perpetrators of forced abortion and infanticide appear to be driven by official ideology that emphasizes the importance of maintaining the purity of the Korean race at all costs. In these circumstances, they display particular hostility towards Korean women who have had sexual intercourse with Chinese men and become pregnant with what is considered an “impure” baby. For this reason, these inhumane acts also constitute persecution on racial and gender grounds.
In the DPRK’s interrogation detention centres, sexual humiliation is utilized as a deliberate strategy against repatriated women. Individual guards can subject them with impunity to physical and verbal sexual molestation (and, in some cases, also rape). As a matter of standard practice, repatriated women entering the interrogation detention centre have to strip fully naked in front of other prisoners and guards. While fully nude, they are forced to perform a series of squats so as to dislodge money hidden in their private parts (a practice known as “pumping”). The Commission finds that these practices, especially considering that they often committed cumulatively against the same victims, can be so degrading that they amount to sexual violence of a gravity that may constitute crimes against humanity.1595
In line with established policies, women are also searched for money by female, and sometimes also male guards who insert their hands into the victim’s vagina. These invasive body searches are conducted by ordinary guards using unsanitary techniques. The searches are carried out in the presence of other prisoners, and, in some cases, guards of the opposite sex. The overall circumstances, including the nude “pumping” that precedes the vaginal searches, makes the entire procedure sexually humiliating. They commonly serve the purpose of allowing the guards to steal, for personal gain, from repatriated persons any money they may have earned in China. The Commission was not told of any instances where money was taken and used as evidence in judicial proceedings. Such searches would therefore appear to be illegal under the DPRK Code of Criminal Procedure, which only allows searches for the purpose of gathering criminal evidence.1596 They also fall short of international standards, allowing body searches only to be carried out only when and where necessary, in a humane manner, and by persons with appropriate training.1597 Those who resist are beaten into submission. International criminal law considers any unjustified coercive invasion of the genital opening with a part of the perpetrator’s body to be rape.1598 The Commission considers that the invasive vaginal cavity searches performed in the DPRK’s interrogation detention centres for repatriated persons may amount to rape, considering that they are illegal under the DPRK’s own laws; carried out in sexually humiliating overall circumstances; and are not justified by legitimate concern.
According to the findings of the Commission, operatives acting on behalf of the State Security Department of the DPRK have abducted citizens who fled to China as well as Chinese and ROK nationals who helped them.1599 Despite inquiries from international bodies and countries of origin, the fate of the victims has never been revealed. Such cases amount to enforced disappearance, as defined under international criminal law.1600
2. Systematic and widespread attack pursuant to State policy
The Commission finds that persons who flee the DPRK are targeted as part of the DPRK’s systematic and widespread attack against populations considered to pose a threat to the political system and leadership of the DPRK, because the system of isolation, information control and indoctrination imposed by the DPRK stands and falls with its ability to isolate the population from contact with the outside world. Those who flee the country pose a threat because they gain contact with the outside world. They can often relay information back to people in the DPRK that challenges the orthodoxy imposed by the Workers’ Party of Korea and the Supreme Leader.
This political objective is also evidenced by the fact that those who try to flee the DPRK are generally considered perpetrators of anti-state and anti-people crimes. In addition, the policy of punishing escapees from the DPRK is explicitly supported by the DPRK Criminal Code, which criminalizes the unauthorized crossing of the border and makes it subject to severe prison sentences. This is despite ordinary citizens being effectively denied lawful options to exercise their right to leave the DPRK according to article 12 (2) of the ICCPR.
All levels of the state bureaucracy, extending to the Supreme Leader himself, have devoted considerable attention and resources to the issue of people fleeing the DPRK since the issue became more prevalent in the 1990s. Kim Jong-il personally intervened to provide guidelines to adjust punishment levels. The emergence of Kim Jong-un in late 2009 as the apparent successor to his ailing father, has coincided with a reinforced ongoing effort to seal the border and exact harsher punishments against those who help escapees. Recently, the central level also intervened to modify (but not abolish) shoot-to-kill policies. It appears that this was done after China complained about the impact of border shootings on its territory. The fact that the SSD has pursued politically highly sensitive abductions of individuals from Chinese territory also suggests that the directions driving violations against those who fled the DPRK come from the highest levels of the state.
High-level officials and state media in the DPRK also regularly brand people who successfully flee the DPRK with terms such as “traitor” or “human scum”, thus creating a psychological environment facilitating and even encouraging the commission of crimes against humanity targeting persons trying to flee the DPRK.
The DPRK has dedicated considerable resources to process and punish the large numbers of persons repatriated back to the DPRK. This affords further evidence to the existence of a centralized State policy. The main security agencies (SSD, MPS and KPA) are closely coordinating their efforts in order to seal the border and punish those found crossing it. The SSD has assumed the lead in the overall border control process since 2012, which indicates the political importance that the DPRK’s leadership attaches to the issue. Interrogation and interim holding facilities have been expanded or, in some cases, newly established to accommodate the large number of repatriated persons.
The fact that violations are large-scale and follow regular patterns also supports the Commission’s finding that they must be based on State policy. Bearing in mind the large numbers of DPRK nationals who fled to China and the rigorous forced repatriation policy that China pursues, it can be estimated that tens of thousands of DPRK nationals have been repatriated. Almost all of the repatriated people are subjected to inhumane acts. The torture, sexual violence and inhumane conditions of detention that victims endure during the search and initial interrogation phase appear to be based on standard procedures. Standard protocols also seem to govern the transfer of repatriated persons between different security agencies and types of detention facilities.
F. Starvation
Based on the body of testimony and other information received,1601 the Commission finds that DPRK officials have committed crimes against humanity by implementing actions, decisions and policies known to have led to mass starvation, death by starvation and serious mental and physical injury. The underlying policy derived from the highest level of the state. While a number of the features of this policy have changed since the second half of the 1990s, when mass starvation and related deaths peaked, the Commission remains concerned that some of the elements that have led to crimes against humanity are still present.
1. Inhumane acts
The Commission finds that the following inhumane acts have been committed:
