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1620 In the Nuremberg judgment, for instance, the policy to force non-Jewish foreign workers into slave labour was considered a central part of the attack against the civilian population in countries occupied by Nazi Germany. Judgment of the International Military Tribunal, The Trial of German Major War Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Vol.1 (1946), pp. 460 ff. In coming to this conclusion, the Nuremberg judgment took into account statements of Heinrich Himmler, one of the main architects of the slave labour policy, which indicated that the objective of the policy was to boost the German war effort, but was driven by awareness and acceptance that inhumane acts were being committed in pursuing this objective. See Judgment of the International Military Tribunal, pp. 460 and 463.
1621 See in particular section IV.F. 1622 See section IV.F.1. 1623 See article 18(i). The Draft Code is included in the Yearbook of the International Law Commission, 1996, vol. II (Part Two), A/CN.4/Ser.A/1886/Add.1. 1624 In Nuremberg, it was held that the practice of arresting partisans in occupied territory and deporting them to Germany, while deliberately not informing their family members about their fate, amounted to a war crime and a crime against humanity. This practice was based on the infamous “Nacht und Nebel Erlass” [Night and Fog Decree] issued by Adolf Hitler. In considering that the defendant Keitel had committed war crimes that also amounted to crimes against humanity, the International Military Tribunal specifically emphasized the anxiety for the families that the Night and Fog Decree meant to cause. See Judgment of the International Military Tribunal at Nuremberg, p. 453 read in conjunction with p. 468. See also United States of America v. Alstötter et al. [“The Justice Case”] 3 Law Reports on the Trial of War Criminals 1 (1948), at 1031 ff. In support of the conclusion that enforce disappearances are not a “new” crime against humanity, but constituted a crime against humanity since Nuremberg see also Darryl Robinson, “Defining Crimes against Humanity at the Rome Conference”, The American Journal of International Law, vol. 93, No. 1 (January 1999), p. 58 [n.76]; Robert Cryer and others, An Introduction to International Criminal Law and Procedure, pp. 262-263. When first addressing enforced disappearances, the General Assembly also clarified that the systematic practice of enforced disappearances was of a nature of a crime against humanity. See General Assembly, Declaration on the Protection of All Persons from Enforced Disappearance, A/RES/47/133, preamble. The ICTY also recognized enforced disappearances as inhumane acts giving rise to crimes against humanity, even though they were not explicitly listed in its statute. See Prosecutor v Kupreskic, IT-95-16-T [ICTY Trial Chamber], Judgment of 14 January 2000, para. 566; Prosecutor v. Kvocka et al, IT-98-30/1-T [ICTY Trial Chamber], Judgment of 2 November 2001, para. 208. The Commission notes that some authors consider that the Rome Statute has not codified pre-existing customary law, albeit without apparently considering the Nuremberg precedents noted above. See e.g. Antonio Cassese and Paola Gaeta, Cassese’s International Criminal Law, p. 98. 1625 See article 7(2)(i) Rome Statute. 1626 Article 118, first paragraph, of the 1949 Geneva Convention III, which the DPRK has ratified, provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”. Building on state practice harkening back to the Hague Regulations of 1899 and 1907, this obligation also forms part of Customary International Humanitarian Law. See International Committee of the Red Cross, Customary International Humanitarian Law vol. 1 (2005), p. 451 [Rule 128]. 1627 During their imprisonment, they also suffered the crimes against humanity detailed in sections V.B and V.C. 1628 An enforced disappearance can also result from an initially legal arrest. See Working Group on Enforced and Involuntary Disappearances, General Comment on the Definition of Enforced Disappearance, para. 7, contained in: A/HRC/7/2; Julian Fernandez & Xavier Pacreau, Statut de Rome de la Cour Pénale Internationale: Commentaire article par article (2012), p. 451. For purposes of legal analysis, it is therefore immaterial whether the fishers concerned were illegally arrested on the high seas or in ROK waters or whether they had illegally entered DPRK waters, which would allow for their temporary arrest under certain circumstances in accordance with the International Law of the Sea as it stood at the time the arrests were carried out. 1629 Affected countries enjoy the right to extend protection to their nationals under customary international law. See Ahmadou Sadou Diallo (Guinea v Dem. Republic of the Congo) 582 I.C.J. (2007) [Preliminary Objections], at para. 39. See also article 36 of the Vienna Convention on Consular Relations, to which the DPRK acceded in 1984. 1630 See in this regard, the testimonies of the families who appeared before the Commission at the Seoul Public Hearing, 23 August 2013, morning and afternoon, and at the Tokyo Public Hearing, 29 August 2013, morning and 30 August, morning and afternoon.. 1631 There is some jurisprudence suggesting that up to the 1990s, crimes against humanity may have had an additional requirement, namely that the attack had to be based on national, political, ethnical, racial, or religious grounds (discriminatory ground requirement). There is weighty legal authority for and against the proposition. The discriminatory grounds requirement is mentioned in the International Law Commission’s 1954 Draft Code of Offences against the Peace and Security of Mankind, the 1994 Statute of the ICTR and the 1993 Report of the Secretary-General leading up to the establishment of the ICTY (see S/25704, para. 48). It is also mentioned in article 5 of the Statute of the Extraordinary Chambers of the Court of Cambodia (ECCC) in light of the fact that the ECCC is considering crimes committed between 1975 and 1987. See also KAING Guek Eav alias Duch, 001/18-07-2007-ECCC/SC (Extraordinary Chambers in the Courts of Cambodia, Appeals Chamber), Judgement of 3 February 2012, paras. 105 and 106. Conversely, the discriminatory grounds requirement is not mentioned in the Statute of the ICTY. Both the ICTY and the ICTR Trial Chamber have held that it never constituted part of customary international law, but is instead based on a misreading of the Nuremberg Charter. See Prosecutor v. Tadic, IT-94-1-A [ICTY Appeals Chamber], Judgment of 15 July 1999, para. 297; Prosecutor v. Akayesu ICTR-96-4-A [ICTR Appeals Chamber], Judgment of 1 June 2001, para. 464. Discriminatory grounds are not required either under the definition of crimes against humanity under the 1996 version of the International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind. Since the Commission finds that political grounds were underlying the attack, namely the objective of enhancing the DPRK in the struggle for supremacy over the Korean peninsula, it does not have to pronounce itself on this legal question. 1632 See section IV.F.2 a). 1633 See section IV.F.1 g). 1634 On the continuous nature of the crime of enforced disappearance see Working Group on Enforced or Involuntary Disappearances, General Comment on Enforced Disappearance as a Continuous Crime (2010), paras. 6 and 7. Available from http://www2.ohchr.org/english/issues/disappear/docs/GC-EDCC.pdf. See also Simón, Julio Héctor y otros s/ privación ilegítima de la libertad, etc. Causa N°17.768C (Supreme Court of Argentina), Judgement of 13 June 2005, paras.56-57 [concurring opinion of Judge Antonio Boggiano, para. 42]. Available from http://www.unhcr.org/refworld/pdfid/4721f74c2.pdf; Juan Contreras Sepulveda y otros (crimen), Corte Suprema 517/2004, Resolución 22267 (Supreme Court of Chile), Judgment of 17 November 2004), paras. 37-39. Available from http://www.derechos.org/nizkor/chile/doc/krassnoff.html; José Carlos Trujillo Oroza, Case No. 1190/01-R (Constitutional Court of Bolivia), Judgment of 12 November 2001. Available from http://gestor.pradpi.org/download.php?id_doc=1013; Caso de Jésus Piedra Ibarra, Recurso de apelación extraordinaria 01/2003 (Supreme Court of Mexico), Judgment of 5 Nov 2003. Available from: http://www.scjn.gob.mx/2010/transparencia/Documents/Transparencia/Primera per cent20sala/Novena per cent20 per centC3 per centA9poca/2003/23.doc. 1635 See Elements of Crimes, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Session, Sept. 3–10, 2002, article 7(1)(i), para. 1. (b). See also Christopher K. Hall, “Article 7: Crimes against Humanity”, in Otto Triffterer and Kai Ambos, Commentary on the Rome Statute of the International Criminal Code (2008), at article 7, para. 134. 1636 See Working Group on Enforced and Involuntary Disappearances, General Comment on the Right to the Truth (A/HRC/16/48), para. 6. The Working Group further stipulates that, in accordance with international standards, the remains of the person should be clearly and indisputably identified, including through DNA analysis. State authorities should not undertake the process of identification of the remains, and should not dispose of those remains, without the full participation of the family and without fully informing the general public of such measures. They must use forensic expertise and scientific methods of identification to the maximum of its available resources, including through international assistance and cooperation. 1637 See sections IV.E.3 f) and V.B.1. 1638 See Convention on the Prevention and Punishment of the Crime of Genocide, article 2; Rome Statute, article 6. 1639 In the drafting of the Rome Statute, the delegate of Cuba proposed to expand the definition to political and social groups, but this proposal found no support with other delegations. See William Schabas, Unspeakable Atrocities, p. 106. 1640 See section IV.E.3 d). 1641 Testimony of Reverend Stuart Windsor on behalf of Christian Solidarity Worldwide, London Public Hearing, 23 October 2013, session 5. See also Christian Solidarity Worldwide, “North Korea: A Case To Answer, A Call To Act”, p. 63. 1642 See section IV.A.4. 1643 TBG031, a former SSD agents, placed the figure of SSD agents at 100,000, but only 6,000-8,000 could take decisions. Other observers have indicated that the SSD has 30,000 or more than 50,000 agents; Robert L. Worden ed., North Korea: A Country Study, p. 277; Ken E. Gause, “Coercion, Control, Surveillance and Punishment”, p. 17; Based on testimony from former SSD officials, one analyst estimates that the SSD may retain 250,000-300,000 paid informers. See Andrei Lankov, The Real North Korea, p. 49. TLC041, a former SSD official, indicated that he had 35 informers to keep track of a population of 2,600 citizens. Extrapolated to an entire population, this would mean that more than one in every 100 DPRK citizens is an SSD informer. 1644 TAP024, TJH015, TLC041, ECC002. 1645 See DPRK Code of Criminal Procedure, article 124. 1646 Ken E. Gause, “Coercion, Control, Surveillance and Punishment”, p. 27. 1647 Former DPRK officials told the Commission that documents considered sensitive were handled by special documents safekeeping departments and officials could only gain access to numbered copies that they had to hand back. Other officials indicated that written information revealing human rights violations and other sensitive conduct was systematically destroyed. 1648 Underlying this are shifts of power between individuals who either have their power base primarily in the Party or in the military. Observers generally note that under Kim Il-sung, the Party was predominant, whereas there was a shift of power towards individuals with their power base in the military under Kim Jong-il. The pendulum may have shifted back to the Party to some degree during the initial stages of Kim Jong-un’s rule. However, the wider repercussions of the purge of Jang Song-thaek remain to be understood and could indicate a shift of power back to figures from the military. 1649 The Supreme People’s Assembly is controlled through a small Presidium of high-ranking Workers’ Party of Korea cadres. According to article 92 of the DPRK Constitution, the Presidium convenes the Supreme People’s Assembly once or twice a year. Mr Kim Yong-nam, the current chairperson of that Presidium, is one of the members of the Standing Committee of the Political Bureau of the Central Committee of the Workers’ Party of Korea. The Presidium has the power to adopt its own legislative decrees. The 2007 “Annex to the Criminal Code” Decree, which introduced a number of new criminal offenses that are subject to the death penalty (see section IV.D.5), was adopted by the Presidium in this manner. 1650 See Charter of the Workers’ Party of Korea, as revised in 2010, preamble article 4(1), with additional references to the solitary leadership system in articles 2, 5, 28, 33, 40, 45, 48 and 53. 1651 ”Supreme Leader Kim Jong-un’s New Year Address”. KCNA, 1 January 2014, available from http://www.kcna.kp/kcna.user.article.retrieveNewsViewInfoList.kcmsf#this. 1652 During Kim Il-sung’s rule, the Organization and Guidance Department of the Central Committee, which was headed by his son and successor Kim Jong-il, was particularly influential. In the late stages of Kim Jong-il’s rule and the first two years of Kim Jong-un’s rule, the Administration Department, then headed by Kim Jong-il’s brother-in-law Jang Song-thaek, was said to be particularly influential. 1653 See Charter of the Workers’ Party of Korea, article 22. 1654 See Charter of the Workers’ Party of Korea, article 21. 1655 See “Report on Enlarged Meeting of Political Bureau of Central Committee of WPK”, KCNA, 9 December 2013. Available from http://www.kcna.co.jp/item/2013/201312/news09/20131209-05ee.html. 1656 DPRK Constitution, article 109. 1657 DPRK Constitution, article 100. Kim Jong-un was formally elected to the position of First Chairman by the Supreme People’s Assembly in April 2012. See “Kim Jong-un Elected First Chairman of NDC of DPRK”, KCNA, 13 April 2013. Available from http://www.kcna.co.jp/item/2012/201204/news13/20120413-44ee.html. The designation as ‘First’ Chairman apparently results from the act that the late Kim Jong-il is considered to remain the eternal Chairman of the National Defence Commission. 1658 DPRK Constitution, article 109. 1659 TAP024, TLC037. 1660 DPRK Constitution, articles 103 and 109. 1661 Submission to the Commission: SUB061 (from a former official). TLC022, TLC040, TGC004, TBG025. A similar reporting practice was reportedly continued at least during the initial stages of Kim Jong-un’s rule. See Ken E. Gause, “North Korean Leadership Dynamics and Decision-making under Kim Jong-un”. 1662 DPRK Constitution, articles 102 and 103. 1663 Testimony from former officials TBG025, TBG027, TBG029, TBG031, TGC004, TJH015, TJH044, TLC022, TLC040, TLC041, TLC044, TSH059. 1664 Former officials TBG031, TLC041, TCC014. See also section IV.A.2 (c), IV.C.1 (a) and IV.C.2. 1665 TGC004, TJH015. 1666 See International Law Commission, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries”, 2001, p. 85; M. Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application, pp. 263 ff. 1667 A trial of alleged perpetrators based on the prohibition under international law would not constitute a breach of the prohibition of the retrospective application of criminal offenses. See ICCPR, article 15 (2). 1668 See Rome Statute, article 33. See also Charter establishing the Nuremberg Tribunal, article 8; United States v. Wilhelm List et al, XI Reports of Trials of War Criminals (1950), p. 1236; United States v. Erhard Milch, VII Reports of Trials of War Criminals (1947), p. 42. 1669 The letter is reproduced in Annex II of the Commission report (A/HRC/25/63). An unedited version of the detailed findings reflected in the present document was shared with the People’s Republic of China for information and comments on 20 January 2014. 1670 The letter is reproduced in Annex I of the Commission report (A/HRC/25/63). 1671 The legal requirements of this principle are set out in the Rome Statute, article 28. 1672 International law of state responsibility requires states to cooperate to bring to an end through lawful means any breach of peremptory international law (jus cogens). See article 41 of the Articles on State Responsibility, which were adopted by the International Law Commission and commended to the attention of States by General Assembly Resolution resolution 56/83 of 12 December 2001. A State’s failure to exercise the duty to bring to justice perpetrators of crimes against humanity amounts to a violation of peremptory international law (jus cogens). 1673 See Rome Statute, article 24. The Rome Statute entered into force on 1 July 2002. In the case of enforced disappearances, although they are continuous crimes, the Elements of Crimes of the Rome Statute explicitly requires that the initial abduction or other deprivation of liberty would have to have taken place after July 2002. See Elements of Crimes, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess., Sept. 3–10, 2002, article 7(1)(i), footnote 24. The Commission notes, however, that no such jurisdictional limits applies to the crime against humanity of imprisonment and other severe deprivations of liberty in violation of fundamental rules of international law, which are often also committed in connection with international abductions. On this basis, crimes against humanity related to the international abductions could potentially fall under the jurisdiction of the ICC. 1674 See Security Council Resolutions 827 (1993) and 955 (1994). 1675 General Assembly resolution 377 A (V) of 3 November 1950. 1676 The General Assembly already took a role in the establishment of the Extraordinary Chambers of the Court of Cambodia. General Assembly resolution 57/228(B) of 13 May 2003 approved the agreement of 6 June 2003 between the Royal Government of Cambodia and the United Nations that led to the establishment of these chambers. 1677 Notable examples are the Special Court for Sierra Leone and the Extraordinary Chambers of the Courts of Cambodia. 1678 See in this regard the findings on the lack of independence and impartiality of the judicial process in the DPRK contained in sections III.E and IV.E.4 (a). 1679 During the course of its work, the Commission discovered that a steady stream of first-hand information on the human rights situation is emerging from the Democratic People’s Republic of Korea, notably through those who are fleeing and direct contacts facilitated by modern technology. However, building the trust necessary to gather such information takes steady engagement with relevant actors on the ground, which cannot be sustained based on the headquarters-based approach pursued by the United Nations so far in relation to the DPRK. 1680 This approach was pursued in South Africa through its Truth and Reconciliation Commission, although most of the alleged main perpetrators of crimes committed in Apartheid South Africa were no longer in power when that commission took up its work. 1681 See also Prosecutor v Kallon and Kamara, SCSL-04-15AR72(E), SCSL-04-16-AR72(E) [SCSL Appeals Chamber], Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, of 13 March 2004, para. 73; Barrios Altos v. Peru, (Ser. C) No. 75 [Inter-American Court of Human Rights], Int.Am. Ct. H.R, Judgment of March 14 2001, para. 41. 1682 See World Summit Outcome Document A/RES/60/1, para. 139. A corresponding legal obligation is also emerging under the International Law of State Responsibility, which obligates states to cooperate to bring to an end any serious breach by a state of an obligation arising under a peremptory norm of general international law. See articles 40 and 41 of the International Law Commission’s “Draft Articles on Responsibility of States for Internationally Wrongful Acts”, which the General Assembly commended to the attention of States through Resolution 56/83 of 12 December 2001. Crimes against humanity, war crimes, ethnic cleansing and genocide amount to such breaches of peremptory law. 1683 “DPRK Foreign Ministry Spokesman Flays Hostile Forces’ Adoption of ‘Human Rights Resolution’ against DPRK”, KCNA, 20 November 2013. Available from http://www.kcna.co.jp/item/2013/201311/news20/20131120-21ee.html; “UN Human Rights Council's ‘Resolution on Human Rights’ against DPRK Rejected by DPRK FM Spokesman”, KCNA, 20 March 2013. Available from http://www.kcna.co.jp/item/2013/201303/news22/20130322-39ee.html. Language of a comparable kind was used in relation to past resolutions. 1684 See section II.2 for details on the DPRK’s lack of cooperation with United Nations human rights mechanisms. 1685 For more details on this initiative see http://www.un.org/sg/rightsupfront/. 1686 See in this regard, the recommendations to the international community in the Commission’s report, which the Commission set out in accordance with Human Rights Council Resolution 13/22, read in conjunction with paragraph 31 of the report of the Special Rapporteur on human rights situation in the Democratic People’s Republic of Korea. GE.14-10871 Directory: HRBodies -> HRC -> RegularSessions -> Session25 -> Documents RegularSessions -> General Assembly Documents -> Original: English RegularSessions -> Original: English RegularSessions -> Original: English RegularSessions -> Original: English Documents -> A/hrc/25/48/Ad Download 2.63 Mb. 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