Family members of the disappeared have been subjected to torture and other cruel, inhuman or degrading treatment.1517 They have been denied the right to an effective remedy for human rights violations,1518 including the rights to the truth,1519 family life and cultural practices.
(i) Violations of the right to truth
Although the Korean War ended 60 years ago, it has not ended for the families of Korean War Abductees and POWs denied repatriation who to this day have no contact with their family members or knowledge of their fate. Relatives of post-war abductees have told the Commission of the torture of not knowing which they continue to suffer. The mother of an abducted fisher described to the Commission the sadness she feels not being able to communicate with her abducted son, and how she longs to at the very least be able to mail letters to him or telephone him.1520
(ii) Violations of the right to family life
Human rights law recognizes the family is a fundamental and natural unit which requires the full protection of the state. It specifies state obligations to keep families together and reunify them when they become separated.
Despite the establishment of the separated family reunions between the two Koreas, very few family members of the forcibly disappeared in the ROK have been able to participate and reunite even temporarily with their loved ones.
Few postwar ROK abductee family members have been able to attend, but they do so on the condition that no mention is made of the abduction.1521 Most postwar abductee family members that have applied to attend a separated family reunion have received notification at the life status verification stage of the process, that their loved one has since deceased or their life status cannot be verified. Given the high level of surveillance on those of South Korean origin, and the nature of DPRK monitoring in society in general, from the Inmin-wiwon-oei (regional level) down to the Inminban (Neighbourhood Watch), the Commission finds it difficult to believe that life status verification is not possible in the DPRK.
For victims from countries other than the ROK, aside from the five abducted Japanese nationals returned to Japan in 2002, there have not been any initiatives to permit the forcibly disappeared to communicate with their families nor allow their return. Several witnesses articulated to the Commission their pain resulting from the denial of their family life.
Mrs Kim Hang-tae, an 85 year old woman, spoke of the torment of seeing loving relationships around her and wishing she could have had the same:
“If at least I could find the body of my husband, I would like to lay over his body… Whenever I see somebody holding hands, whenever I see somebody, grandfather holding hands with their grandchildren, I wish I could do the same. Whenever I see children loved by their father, I mean, my husband didn’t do anything wrong. If he had committed a crime and he was beaten up and killed for that, I wouldn’t feel this bad. But this is just unbelievable. I cannot admit what happened to me. My husband was a good man, a decent man. Half of her is gone when a wife was lost her husband. It’s like having lost an arm. I am waiting until this day. I am holding hands with my daughter waiting the return of my husband.”1522
Mrs Yokota Sakie, mother of abducted 13 year old Ms Yokota Megumi told the Commission how she hoped the right to family would be understood by the new leader, and all the abductees returned:
“Kim Jong-un is also part of a family. He is a father. He has family members. He should understand how it feels for a family member to lose someone, a beloved one. That is something I would like to communicate to them through the Japanese Government. These wrongdoings should be stopped from both parties so that we can create a peaceful world from both parties.”1523
(iii) Violation of cultural rights: iInability to practice cultural customs relating to death
Many of the victims of historical abductions such as Korean War Abductees, POWs, fishers and returnees that disappeared in the 1950s are believed to have died in the North as a result of the passage of time since their abduction. For family members of these abductees, not only have they endured immense suffering for the loss of their loved one, but have been unable to satisfactorily mourn their deaths.
Death in Korean society
Knowing and acknowledging the date of a loved one’s death in both Koreas and in Japan is fundamental to cultural practices and beliefs about the after-life. After death, the body of the deceased is kept at the family home for 3 to 5 days to enable friends and family to gather and pay their respects to the deceased and their family. Families unable to carry out this practice forgo not only their own opportunity to say good-bye to their loved one, but the opportunity for their community, friends and family to do so.
The body, bones or ashes of the deceased are traditionally held in a safe place after death to enable the deceased’s spirit to be at peace. As families feel a responsibility to put their loved one to rest, being unable to do so causes the families of the deceased to worry about the peace of their loved one’s spirit. Family members feel guilty for not being able to carry out their responsibility.
In addition to any religious beliefs about life after death, most South Koreans and Japanese, and to a certain extent DPRK nationals, believe that their loved ones visit them on the anniversary of their death to reunite with the family. In preparation for this event, known as Jaesa in Korean, the family prepare food the deceased favoured during their life, and offer it to their spirit. Families who do not know their family member’s date of death are unable to carry out this important practice on the correct date of death, and therefore miss the opportunity to reunite with their loved one’s spirit each year. The Korean calendar makes allowances for this practice by nominating 9 September on Lunar Calendar as Jung-jang-jeol (重陽節- the day of the dead) on which people who do not know the date of their loved one’s death carry out Jaesa. However, the practice of Jaesa on Jung-jang-jeol is not widely known and family members have a strong preference to carry out Jaesa on the correct date of death.
Individual efforts to locate and repatriate the remains of other forcibly disappeared persons have resulted in the repatriation of remains of six POWs to the ROK. The repatriation of remains has been a significant and positive step for the family members of the disappeared, enabling them to fulfil cultural practices which guide the grieving process.
(c) Gendered impact of enforced disappearances
The Commission recognizes that women and girls, men and boys have been the victims of enforced disappearance by the DPRK and suffered harm as a result of being relatives of someone who has been disappeared. The Commission further acknowledges that women, girls, men and boys suffer differently from these harms due to gender roles, tradition and culture.
The wartime abductions, denial of repatriation of POWs and the post-war abduction of fishers have involved a disproportionate number of men from the ROK. The disappearance of between 100,000 and 170,000 men had an enormous impact on the lives of women, girls and boys in a culture in which gender roles are deeply embedded in history and tradition, at a time when those roles were more pronounced than they are today. Many women suddenly found themselves to be the head of households. Without the support of a main income earner in the family, they had to shoulder the entire burden of family life themselves, at a time when relatives of the disappeared were under surveillance and treated with great suspicion.
At the Seoul Public Hearing, the Commission heard from relatives of the disappeared about the extreme hardship they faced when a husband and father was disappeared. Mr Nam Jang-ho, the son of a fisher taken at sea and disappeared, told the Commission:
“I think my mom did everything she could. She held different jobs. And our siblings did not get enough education. We were only able to graduate from elementary school. I didn’t even get to graduate from elementary school because things were so bad at home. Since there was no father at home, my mom used to steal sweet potatoes and potatoes from the fields of other people to feed us. And I wanted to lessen her burden. And that is why I left home. I thought that would be better for her. It was difficult for us, the children, but I think it was even more difficult for my mom.”1524
The Commission also notes that the post-war abduction of women on the basis that they are women is an act of gender-based violence. In this regard, the Commission notes the specific instructions provided to Ms Yao Megumi to find and abduct a Japanese female in Europe to be the wife of Japanese abductee, the abduction of seven foreign women to be “given” as wives to the US army defectors,1525 and the two women taken from Macao who are believed to have become victims of sexual exploitation in the DPRK. The Commission emphasizes its concern that these women together with the other women who have been forcibly disappeared by the DPRK were/ are disproportionately at risk of sexual violence.
(d) Discrimination against children
(i) Abducted children
The enforced disappearance of a child is not only a violation of many rights afforded by the Declaration on the Protection of All Persons from Enforced Disappearance, but is also an extreme form of violence against children.1526 The Commission notes that many of the abductees were under the age of 18 at the time of their abductions. These include:
Thousands of the Korean War abductees were children at the time of their abduction.1527
Mr Kim In-cheol who was a high school student when abducted from the fishing boat Deoksu 2-ho in 1968.
Five ROK high-school students taken from beaches in the ROK in the summers of 1977 and 1978.
Ms Yokota Megumi, abducted from Japan at age 13 on 15 November 1977.
These children have not only been denied the right not to be disappeared, but also the right to family life, the right to not to be separated from their parents,1528 and the right to be cared for by their parents.1529 The Commission is also concerned that these children will have been denied other fundamentals rights in the DPRK such as those relating to the freedom of expression,1530 freedom of thought, belief and religion1531 and right to privacy.1532 Parents of these children have also been denied the right to family, and the right to guide their children.1533
(ii) Children left behind
The Commission recognizes that the children of persons who have been disappeared by the DPRK have been denied the right to found and maintain a family and the right not to be separated from their parents.1534 Several witnesses testified before the Commission about being separated from a parent at a young age, and missing them constantly.
Mr Hwang In-chul, son of Korean airline hijacking abductee Mr Hwang Won, told the Commission:
“I was two, and my sister was only 100 days old. So my mother had to raise us all on her own. I repeatedly asked my mother whereabouts about my father. I had no memory of my father, but I remember he loved me very much, and I missed him. So the memory is very clear. I have very clear memory of my father. I asked my mother, and every time I asked my mother about the whereabouts of my father, she said that he was on a business trip in the United States and that was her answer and I kept asking her and kept waiting for my father. When I was on the third grade in the elementary school, my uncle, the younger brother of my father, told me that my father had been abducted when he got on that plane and ever since I have missed my father so much until this day.”1535
Several witnesses also told the Commission of their yearning to know whether their parent is alive or not, and to have the bodies of their parents presumed to be dead because of their age, returned to them.1536
3. Principal findings of the commission
The Commission finds that, from 1950 until the present, the DPRK has engaged in the systematic abduction, denial of repatriation and subsequent enforced disappearance of persons from other countries on a large scale and as a matter of State policy. Well over 200,000 persons who were taken from other countries to the DPRK may have potentially become victims of enforced disappearance, as defined in the Declaration for the Protection of All Persons from Enforced Disappearance. More information would have to emerge from the DPRK to provide a more reliable estimate on the number of victims.
For a nation state which seeks to live alongside other nation states, to act in this way for such a long time, in defiance of the sovereignty of other states and the rights of foreign nationals guaranteed under international law, is exceptional.
The vast majority of abductions and enforced disappearances occurred during or are otherwise linked to the Korean War and the organized movement of ethnic Koreans from Japan that started in 1959. However, hundreds of nationals of the ROK, Japan and other states were also abducted and disappeared between the 1960s and 1980s. In more recent years, the DPRK abducted a number of DPRK and ROK nationals from the People’s Republic of China.
The DPRK used its land, naval and intelligence forces to conduct abductions and arrests. Both Korean War and post-war operations were approved at the level of the Supreme Leader. The vast majority of victims were forcibly disappeared to gain labour and other skills for the DPRK. Some victims from the Republic of Korea and Japan were used to further espionage and terrorist activities. The DPRK often targeted non-Korean women because they are women, an act of gender-based violence. Women abducted from Europe, the Middle East and Asia were subjected to forced marriages with men from other countries to prevent liaisons on their part with ethnic Korean women that could result in inter-racial children. Some of the women have also been subject to sexual exploitation.
Some of the forcibly disappeared initially travelled to the DPRK voluntarily. Others were abducted through physical force or fraudulent persuasion. Subsequently, they were all denied the right to leave the DPRK. They have been subject to severe deprivation of their liberty and freedom of movement within the DPRK, denied the right to recognition as a person before the law, and the right not to be subjected to torture and other cruel, inhuman or degrading treatment. All of the forcibly disappeared have been placed under strict surveillance. They have been denied education and employment opportunities.
Ethnic Koreans from the Republic of Korea and Japan forcibly disappeared by the Democratic People’s Republic of Korea have been discriminated against for their origins and background. They were categorized as “hostile” and forced to work in mines and farms of remote marginalized areas. It is anticipated many of them were likely to have been the first victims of the famine in the 1990s because of their lower social status. Being forced to live in remote areas with limited resources has also resulted in the forcibly disappeared having limited access to medical facilities.
Non-Korean abductees were not able to integrate into social and economic life in the DPRK as they were detained in tightly controlled compounds. They were denied the right to work, precluded from leaving their residence and moving freely in society, and unable to choose education opportunities for themselves and their children.
Many of the forcibly disappeared were under the age of 18 at the time of their abduction or arrest. These children have not only been denied the right not to be disappeared, but also the right to family life, the right to not to be separated from their parents, and the right to be cared for by their parents.
Family members abroad and foreign states wishing to exercise their right to diplomatic protection have been consistently denied requested information establishing the fate and whereabouts of the victims. Family members of the disappeared have been subjected to torture and other cruel, inhuman or degrading treatment. They have been denied the right to an effective remedy for human rights violations, including the right to the truth. Parents of disappeared children have been denied the right to family and the right to guide their children. Children of persons who have been disappeared by the DPRK have been denied the right to found and maintain a family and the right not to be separated from their parents.
Despite admitting to the abduction of 13 Japanese nationals by agents of the state, the DPRK has never disavowed the practice of international abductions. Since the 1990s, its agents have abducted a number of citizens and nationals from Chinese territory including nationals of the People´s Republic of China and the Republic of Korea, and in at least one case a former Japanese national.
The Commission finds that almost all the foregoing victims remain disappeared and human rights violations continue against them and their families.
V. Crimes against humanity
Resolution 22/13 requires the Commission to carry out its inquiry “with a view to ensuring full accountability, in particular where these violations may amount to crimes against humanity”. Paragraph 31 of the Special Rapporteur’s report, to which Resolution 22/13 refers, provides that the “inquiry should examine the issues of institutional and personal accountability for [grave, systematic and widespread violations], in particular where they amount to crimes against humanity” and provide a “detailed examination and legal analysis of whether crimes against humanity are being perpetrated”.1537
The Commission has approached this element of its mandate in recognition of the fact that it is neither a judicial body nor a prosecutor. It cannot make final determinations of individual criminal responsibility. It can determine whether its findings establish reasonable grounds that crimes against humanity have been committed so as to merit a criminal investigation by a competent national or international organ of justice. Where the Commission makes findings on crimes against humanity in this sections, these findings must be understood as being on the basis of the ‘reasonable grounds’ standard of proof.1538
The Commission has focused its consideration of crimes against humanity on those patterns of gross human rights violations, where the Commission’s factual findings, as determined in section IV of this report, established a particularly compelling case.1539 Accordingly, the Commission focused its analysis on six groups of victims:
inmates of political prison camps;
inmates of the ordinary prison system, in particular political prisoners among them;
religious believers and others considered to introduce subversive influences;
persons who try to flee the country;
starving populations; and
persons from other countries who became victims of international abductions and enforced disappearances.
Crimes against humanity require (1) intentional inhumane acts that (2) form part of a widespread or systematic attack.1540 With regard to each of these six victim groups, the Commission will therefore first establish what inhumane acts have been committed against them. The Commission will then address the question of why the inhumane acts committed against each of the six groups form part of systematic and widespread attacks against a civilian population. In this regard, the Commission will establish that three distinct state attacks against civilian populations are underlying crimes against humanity in the DPRK:
The State is carrying out a systematic and widespread attack against anyone who is considered to pose a threat to the political system and leadership of the PDRK. Crimes against humanity targeting inmates of political prison camps and the ordinary prison system, persons who try to flee the DPRK, religious believers and others considered to introduce subversive influences all form part of this attack.
The State has led a systematic and widespread attack against the general population by knowingly aggravating its starvation and sacrificing the lives of large numbers of innocent, ordinary citizens in order to preserve the political system and its leadership.
The State abducted and forcibly disappeared a large number of persons from other countries in a systematic and widespread manner in order to gain labour and skills to enhance the DPRK and strengthen it in the struggle for supremacy on the Korean peninsula.
A. Definition of crimes against humanity under international law
Crimes against humanity entail gross human rights violations of a scale and level of organization that shock the conscience of humanity. First set out in the Charter of the International Military Tribunal at Nuremberg in 1945, the definition of crimes against humanity has been shaped by the body of jurisprudence emanating from the Nuremberg and Tokyo tribunals, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone (SCSL); and national courts. The state practice emerging from the negotiations leading to the adoption of the Rome Statute of the International Criminal Court (Rome Statute) and its subsequent ratification by 122 states has further clarified and elaborated the definition of crimes against humanity. For the most part, article 7 of the Rome Statute, and the specifications in the Rome Statute’s Elements of Crimes, reflect the definition of crimes against humanity under customary international law as that concept stands today.1541
Crimes against humanity have a high legal threshold. Two elements must coincide:
(a) Individuals must commit inhumane acts with the requisite criminal intent; and
(b) These inhumane acts must form part of a widespread or systematic attack directed against a civilian population. The Rome Statute also requires that the attack must be pursuant to, or in furtherance of, a state or organizational policy.1542
1. Inhumane acts
The types of conduct amounting to inhumane acts largely overlap with those recognized as constituting gross human rights violations. The inhumane acts relevant for the purpose of this inquiry are:
murder;
extermination;
enslavement;
deportation or forcible transfer of a population;
imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
torture;
rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law;
enforced disappearance of persons; and
the “residual category” of inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.1543
The inhumane acts must be committed with criminal intent. According to the Rome Statute, such intent requires that the perpetrator acts with the objective of carrying out the inhumane act or is aware that the consequence defining the inhumane act will occur in the ordinary course of events.1544 Gross negligence or inadvertent recklessness are not sufficient for the commission of crimes against humanity.
2. Systematic or widespread attack
The inhumane acts listed above do not amount to crimes against humanity, if they constitute isolated or sporadic events. Instead, they must form part of a larger attack against a civilian population. Such an attack “is not limited to the use of armed force and encompasses any mistreatment of a civilian population”.1545 This attack must be either widespread or systematic (in practice, it is often the case that the attack is both).
An attack is widespread, if it involves “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”1546
A systematic attack requires “organized action, following a regular pattern, on the basis of a common policy and involves substantial public or private resources… there must exist some form of preconceived plan or policy.”1547 Indicators that can be considered as establishing the systematic nature of an attack include that:
the violations are in line with an underlying political objective;
there is an ideology to destroy, persecute or weaken a community;
high-level political and/or military authorities are implicated in the definition and establishment of a methodical plan to commit violations;
propaganda, indoctrination or psychological oppression are used to create an environment in which crimes will occur;
criminal acts are being perpetrated on a very large scale and follow a regular pattern making it improbable that the acts could occur randomly;
there is a repeated and continuous commission of inhumane acts linked to one another; or
organized efforts are made to conceal the crimes committed.1548
B. Crimes against humanity in political prison camps
Based on the body of testimony and information received,1549 the Commission finds that DPRK authorities have committed and are committing crimes against humanity in the political prison camps, including extermination, murder, enslavement, torture, imprisonment, rape and other grave sexual violence and persecution on political, religious and gender grounds.
1. Inhumane acts
The Commission finds that the following inhumane acts have been and are still being committed:
