UM del - 2006-07 - Bilag 18: Menneskerettighedsrapport fra 30. oktober 2006 om Nordkorea

ForewordAlthough in recent weeks the international focus has been on North Korea’snuclear weapons test, the situation in that country is also one of the mostegregious human rights and humanitarian disasters in the world today. Yetsadly, because North Korea is also one of the most closed societies on Earth,information about the situation there has only trickled out over time.With the unanimous adoption by the UN Security Council of the doctrinethat each state has a “responsibility to protect” its own citizens from the mostegregious of human rights abuses, a new instrument for international diplomacyhas emerged. While states retain sovereignty to control their own territory, ifthey fail to protect their own citizens from severe human rights abuses, theinternational community now has an obligation to intervene through regionalbodies and the United Nations, up to and including the Security Council.In this context, we commissioned the global law firm DLA Piper LLP towork with the U.S. Committee for Human Rights in North Korea in preparingan objective and definitive report on the failure of the North Koreangovernment to exercise its responsibility to protect its own people.The evidence and analysis contained in this report is deeply disturbing.Indeed, it is clear that Kim Jong Il and the North Korean government areactively committing crimes against humanity. North Korea allowed as manyas one million, and possibly many more, of its own people to die during thefamine in the 1990s. Hunger and starvation remain a persistent problem,with over 37 percent of children in North Korea chronically malnourished.Furthermore, North Korea imprisons upwards of 200,000 people in itsmodern-day gulag, and it is estimated more than 400,000 have died in thatsystem over 30 years.It is on this basis that we strongly urge the UN Security Council to takeup the situation of North Korea. Protecting the people of North Korearequires nothing less.

Table of ContentsApproachMap of North KoreaTable of AcronymsExecutive Summary ........................................................................................iI. Background on the Situation in North Korea ..............................................1A. Historical Context of International Concern over theKorean Peninsula ......................................................................................1B. Economic Development............................................................................6C. Economic and Social Indicators ................................................................9II. The Crisis ................................................................................................10A. Major Human Rights Concerns ..............................................................101. Food Policy and Famine ........................................................................122. Treatment of Political Prisoners ..............................................................303. Abduction of Foreigners ........................................................................42B. Transnational Effects of the Crisis in North Korea ..................................481. Weapons of Mass Destruction................................................................482. Refugee Outflows ..................................................................................583. Drug Trafficking ....................................................................................624. Money Counterfeiting and Laundering..................................................65C. The International Response ....................................................................681. The Six-Party Talks ................................................................................682. The United Nations ..............................................................................703. South Korea: Development of the Sunshine Policy ................................764. United States of America........................................................................80III. North Korea and the UN Security Council ............................................83A. Violation of the Responsibility to Protect................................................83B. “Non-Traditional” Threat to the Peace ....................................................94Recommendations ......................................................................................100Appendix I: Background, Duties, and Operations of UNSecurity Council......................................................................101Appendix II: The New “Responsibility to Protect” Doctrine underInternational Law ..................................................................109Appendix III: Crimes Against Humanity ....................................................119Appendix IV: Lessons from Past Security Council Interventions ................134

ApproachThe intent of this report is to apply a new doctrine of international law –the responsibility of all states to protect their own citizens from the mostegregious of human rights abuses – to the situation in North Korea. Based ona comprehensive review of published information and first-hand interviews, thisreport concludes that North Korea has violated its responsibility to protect itsown citizens from crimes against humanity being committed in the country,that North Korea has refused to accept prior recommendations from UNbodies to remedy the situation, and, therefore, UN Security Council action iswarranted.In addition, the report explains that North Korea also qualifies as a non-traditional threat to the peace. This designation could provide a completelyindependent justification for Security Council action because of the transnationalimpact of the internal problems in the country.This report also describes North Korea’s involvement in the production ofnuclear, chemical, and biological weapons and related delivery systems.Nevertheless, this information is provided only to present a complete pictureof the situation and to explain how North Korea allocates its resources, not asa justification for further Security Council action. Between the Six-PartyTalks and prior Security Council action on North Korea’s missile launches andnuclear weapon test, substantial work is already being done to address thesecurity threat.President Havel, Prime Minister Bondevik, and Professor Wieselcommissioned this report because they believe that, for far too long, thesecurity threat posed by North Korea has relegated the human rights concernsin the country to a second-class status. North Korea’s nuclear weapons test,conducted on October 9, 2006, demonstrated the fallacy of the argument thatnot antagonizing its government on human rights concerns would promotesuccessful engagement on security issues. Our clients believe, in the wake ofthat test, the human rights and humanitarian crisis in North Korea deserves tobe treated on a parallel track with the security threat and should no longer besuppressed from international discussions.It is worth noting that North Korean authorities regularly deny thehuman rights and humanitarian violations described in this report. Suchgovernmental denials cannot be taken at face value. The only real way forNorth Korea to contradict or invalidate the claims and stories described inthis report and in the cited documents is by inviting United Nationsofficials, Human Rights Council representatives, or reputable NGOs toverify or invalidate on site the information that has been presented.Lastly, North Korea’s isolation from the outside world makes it difficultto gather verifiable information about the country. Therefore, all statisticscited in this report are best estimates, subject to that important caveat.DLA Piper LLPU.S. Committee for Human Rights in North Korea

Table of AcronymsBWBTWCCCL 10CEDAWCRCCWDMZDPRKEUFAOGDIGDPHEUIAEAICCICCPRICESCRICISSICTRICTYKEDOKPAMNDMTNGONPTPDSPOWUNHCRUNDPUNICEFUSSRWFPWMDBiological WeaponsBiological and Toxic Weapons ConventionAllied Council Control Law No. 10Convention on the Elimination of All Forms of DiscriminationAgainst WomenConvention on the Rights of the ChildChemical WeaponsDemilitarized ZoneDemocratic People’s Republic of Korea (North Korea)European UnionFood and Agriculture OrganizationGross Domestic IncomeGross Domestic ProductHighly Enriched UraniumInternational Atomic Energy AgencyInternational Criminal CourtInternational Covenant on Civil and Political RightsInternational Covenant on Economic, Social, and Cultural RightsInternational Commission on Intervention and State SovereigntyInternational Criminal Tribunal for RwandaInternational Criminal Tribunal for the Former YugoslaviaKorean Peninsula Energy Development OrganizationKorean People’s Army (North Korea)Ministry of National Defense (South Korea)Metric TonsNongovernmental OrganizationTreaty on the Non-Proliferation of Nuclear WeaponsPublic Distribution SystemPrisoner of WarUN High Commissioner for RefugeesUN Development ProgramUN Children’s FundUnion of Soviet Socialist Republics (or Soviet Union)World Food ProgrammeWeapons of Mass Destruction

Executive SummaryThe Situation in North Korea•The human rights and humanitarian situation in the Democratic People’sRepublic of Korea (North Korea) continues to deteriorate, with no degreeof measurable improvement. Members of the international community,including governments, nongovernmental organizations (NGOs), andmany United Nations (UN) bodies have reported grave violations ofhuman rights and humanitarian law. Because the North Korean governmentrefuses to implement recommendations made by the UN – includingthose made by the General Assembly, the former Commission on HumanRights, and the Special Rapporteur on Human Rights in North Korea –the people of North Korea continue to suffer. Therefore, UN SecurityCouncil action is both warranted and necessary.

Powers of the UN Security Council•Charged with the critical mission of maintaining peace and security betweennations, the UN Security Council possesses unparalleled authority to makebinding decisions that uphold the United Nations’ commitment to preventwar, preserve human rights, and promote international political stability.According to Chapter VI, Article 34, of the UN Charter, the SecurityCouncil may “investigate . . . any situation which might lead to internationalfriction . . . to determine whether the continuance of the . . . situation islikely to endanger the maintenance of international peace and security.”Under Chapter VII, Article 39, the Security Council “shall determine theexistence of any threat to the peace . . . and shall make recommendations,or decide what measures shall be taken . . . .”Security Council action can include the adoption of resolutions requiringaction on the part of the offending government to curtail its offendingacts. Under Article 25 of the UN Charter, all members of the UN “agreeto accept and carry out the decisions of the Security Council.”Here, two independent justifications enable the Security Council to actwith regard to the situation in the country: (1) the North Korean governmenthas failed in its responsibility to protect its own people from crimesagainst humanity; and (2) the situation in North Korea constitutes a non-traditional threat to the peace.

Background•On September 20, 2005, during the World Summit, the assembled leadersin the UN General Assembly adopted a statement in which they said: “weare prepared to take collective action, in a timely and decisive manner,through the Security Council . . . [if ] national authorities are manifestlyfailing to protect their populations from . . . crimes against humanity.”Subsequently, this statement was unanimously endorsed in Resolution1674 by the Security Council on April 28, 2006.For acts that would ordinarily constitute domestic criminal offenses to beelevated to the level of international “crimes against humanity,” a state andthe perpetrators acting on its behalf must be knowingly involved in aseries of widespread and systematic attacks directed against a civilianpopulation, such as murder, extermination, torture, imprisonment, or otheracts intentionally causing great suffering or serious bodily or mental harm.

Application•The North Korean government is actively involved in committing crimesagainst humanity with respect to both: (1) its food policy leading tofamine and (2) its treatment of political prisoners.Food Policy and Famine:North Korea allowed as many as one million,and possibly many more, of its own people to die during its famine inthe 1990s. Hunger and starvation remain a persistent problem in thecountry. Over 37 percent of children in North Korea are chronicallymalnourished. Even today, North Korea denies the World FoodProgramme access to 42 of 203 counties in the country.Treatment of Political Prisoners:North Korea imprisons upwards of200,000 people in its modern-day gulag without due process of lawand in near-starvation conditions. More than 400,000 are estimatedto have died in that system over 30 years.iiFAILURE TO PROTECT

Background•Although there is no precise definition of what represents a non-traditional“threat to the peace,” the Security Council – through its past actions inevaluating other cases – has elucidated a list of factors that collectively canconstitute such a threat to the peace. Because the Security Council takes acase-by-case approach, no one factor or set of factors is dispositive. Eachpast case embodied a unique set of circumstances; in each case, theSecurity Council considered the totality of circumstances in determiningthat a threat to the peace was taking place.To guide our work, we first reviewed the initial Security Council resolutionsadopted in response to internal country situations that the Security Councildeemed a threat to the peace previously. This review enabled us to identifythe criteria that helped the Council make its decisions. These criteria areused in this report as the determining factors relevant to North Korea.These factors include: (1) widespread internal humanitarian/human rightsviolations; (2) the substantial outflow of refugees; (3) other cross-borderproblems (for instance, drug trafficking); (4) conflict among governmentalbodies and insurgent armies or armed ethnic groups; and (5) the overthrowof a democratically elected government.

In the case of North Korea, three of these five determining factors havebeen met. Satisfying three of five factors was sufficient to justify SecurityCouncil involvement in five of the seven case studies we examined,including the situations in Haiti, Yemen, Rwanda, Liberia, and Cambodia.The factors specifically present in North Korea are as follows:WidespreadInternal Humanitarian/Human Rights Violations:Asdescribed above, there are two sets of activities in which the NorthKorean government is engaging that constitute crimes against humanityand meet this factor: its food policy leading to famine, and its treatmentof political prisoners.Outflow of Refugees:It is estimated that some 100,000 to 400,000North Koreans have fled the country in recent years.Other Cross-Border Problems:–Drug Production and Trafficking:It is believed that the NorthKorean government earns $500 million to $1 billion per year fromillicit drug production and trafficking. It is estimated that NorthKorea harvests 30 to 44 tons of opium and manufactures 10 to 15tons of methamphetamines per year.–Money Counterfeiting and Laundering:The North Koreangovernment produces and launders high-quality counterfeit US$100 bills or “supernotes.” It is estimated that North Korea producesbetween $3 million and $25 million in supernotes per year.

RecommendationsInitially, the UN Security Council should adopt a non-punitive resolution onthe situation in North Korea in accordance with its authority under ChapterVI of the UN Charter and past Security Council precedents.The resolution should:•Outline the major reasons for the Security Council intervention, focusingon the North Korean government’s failure to protect its own people andthe threat to international peace and security caused by the major issuesdescribed in this report;Urge the North Korean government to ensure the immediate, safe, andunhindered access to all parts of the country for the United Nations andinternational organizations to provide humanitarian assistance to the mostvulnerable groups of the population;Call on the North Korean government to release all political prisonersdetained in violation of their rights under the International Covenant onCivil and Political Rights, to which North Korea is a state party;Insist the North Korean government allow the UN Special Rapporteur onHuman Rights in North Korea to visit the country; andRequest the Secretary-General to remain vigorously engaged in thesituation in North Korea and that he report back to the Security Councilon a regular basis.

I. Background on the Situation in North KoreaA. Historical Context of International Concern over the KoreanPeninsulaThe Korean peninsula has long been a focus of other nations’ concern. Atthe crossroads between China, Japan, and Russia, Korea has been the subject ofrepeated invasions and occupations, and lingering tensions. Today, it continuesto require international attention. The following history is presented here toexplain some of the historical cross-currents that have troubled the Koreanpeninsula, and as a summary of how the international community has oftenbeen called upon to intervene to restore peace and stability there.For centuries, Korea was China’s most important tributary state1benefitingfrom Chinese protection but struggling to maintain its independent identity.Japan and China signed the Li-Ito Convention in 18852after China assistedKorea’s king in suppressing a pro-Japanese coup. This tenuous peace brokedown when the Korean government invited Chinese forces into the country toassist in a peasant uprising. Japan viewed China’s intervention as a breach ofthe Convention and sent its own troops to Korea, and war broke out betweenthe two powers in August 1894.3Japan emerged victorious. As a result,China was forced to formally acknowledge Korea’s independence and renounceall claims to its territory in the Treaty of Shimonoseki signed by Japan andChina on April 17, 1895.4In the early 1900s, Russia moved forces into Korea and Manchuria, leadingto war between Russia and Japan.5Japan was again victorious.6The UnitedStates was eager to see peace restored and mediated the Treaty of Portsmouth,

SeeLEEKI-BAIK, A NEWHISTORY OFKOREA20, 73, and 189 (Translated by Edward W. Wagnerwith Edward J. Shultz, Harvard University Press, 1976);see also Sino-Japanese War,ENCYCLOPEDIABRITANNICA(2006)available athttp://search.eb.com/eb/article-9067946 [hereinafterSino-Japanese War].2This treaty was also known as the Convention of Tientsin.SeeLEE,supranote 1, at 279;see alsoSino-Japanese War, supranote 1 (explaining that under the Li-Ito Convention both Japan andChina agreed to troop withdrawals from Korea).3See Sino-Japanese War, supranote 1; LEE,supranote 1, at 287.4See id.at 289;see also History of Korea,ENCYCLOPEDIABRITANNICA(2006),available athttp://search.eb.com/eb/article-9108454 [hereinafterHistory of Korea].5SeeLEE,supranote 1, at 306; DONOBERDORFER, TWOKOREAS4-5 (Basic Books 2001); LEE,supranote 1, at 306;Russo-Japanese War,ENCYCLOPEDIABRITANNICA(2006),available athttp://search.eb.com/eb/article-9064492 [hereinafterRusso-Japanese War].6SeeOBERDORFER,supranote 5, at 5;History of Korea, supranote 4.1

signed in 1905, recognizing Japan’s exclusive role in defense of the peninsula.7The Korean king was subsequently forced to sign a treaty establishing Korea asa Japanese protectorate.8Five years later, in 1910, Japan formally annexed Korea as part of itsexpanding empire.9With international acquiescence, Japan ruled Korea undera governor-generalship administered by military officials.10Despite someorganized Korean resistance, Japan’s dominance of Korea remained unchallengedby foreign powers until the end of World War II.11By the time Japan surrendered to the Allies, the Allies had considered waysto promote a gradual path to Korean independence. In 1943, the UnitedKingdom, China, and the United States issued the Cairo Declaration thatpromised independence for Korea “in due course”12; they expected Korea to bea trusteeship under United Nations supervision. These Allied expectationsgained further expression in the Potsdam Declaration of 1945.13Japan offered to surrender Korea on August 10, 1945. By that date,120,000 Soviet troops had already occupied North Korea14, including some30,000 Russian-trained troops of Korean ethnic extraction. The Russian-trained forces included an individual who called himself Kim Il Sung, whowas eventually to become the dictator of the Communist regime in theNorth.15The terms of the Japanese surrender provided that Japan would yieldthe Korean territory north of the 38th parallel to the Soviet Union andeverything south of the 38th parallel to the United States.16

SeeLEE,supranote 1, at 309; OBERDORFER,supranote 5, at 5;History of Korea, supranote 4.SeeLEE,supranote 1, at 309;History of Korea, supranote 4.9SeeLEE,supranote 1, at 313;Background Note: North Korea(U.S. Department of State, Nov.2005,available athttp://www.state.gov/r/pa/ei/bgn/2792.htm [hereinafterBackground Note].10SeeLEE,supranote 1, at 314;History of Korea, supranote 4.11See Background Note, supranote 9.12Id.; see alsoCHUCKDOWNS, OVER THELINE: NORTHKOREA’SNEGOTIATING STRATEGY15 (AEIPress, 1999).13See id.; see alsoBRADLEYK. MARTIN, UNDER THELOVINGCARE OF THEFATHERLYLEADER:NORTHKOREA AND THEKIMDYNASTY259 (Thomas Dunne Books, 2006) (explaining thecircumstances leading to division of the peninsula at the 38th parallel); OBERDORFER,supranote5, at 6 (same).14T.R. FEHRENBACH, THEFIGHT FORKOREA: FROM THEWAR OF1950TO THEPUEBLOINCIDENT38 (Grosset & Dunlap, 1969).15KIMJOUNGWON, DIVIDEDKOREA: THEPOLITICS OFDEVELOPMENT, 1945-1972 86 (HarvardUniversity Press, 1975);see alsoWILLIAMH. VATCHER, PANMUNJOM: THE STORY OF THEKOREANMILITARYARMISTICENEGOTIATIONS146 n. 16 (Frederick A. Praeger, 1958) (asserting that Kim IlSung was among those sent by the Russians).16SeeMARTIN,supranote 13, at 50.8

Early attempts at unification failed. The US-USSR Commission, establishedby the Moscow Conference in 1945, ended in disagreement over how toaccommodate Korean views in the process.17At the request of the UnitedStates, the UN General Assembly adopted a resolution providing for peninsula-wide elections in Korea overseen by a UN Temporary Commission on Korea.18The goal was to elect a National Assembly that would establish a nationalgovernment and arrange for both US and Soviet troops to leave the peninsula.19Elections were held in the South under UN supervision, but the USSRblocked the UN Commission from entering the North.20As a result, aconstitution was adopted and a president elected by popular vote, but only inthe South.21General Assembly Resolution 293 of October 21, 1949, declaredthat the “Government of the Republic of Korea is a lawfully establishedgovernment . . . the only such Government in Korea” and that the elections ofMay 10, 1948, were “a valid expression of the free will of the electorate.”22In the North, the Communist Party adopted a constitution and elected a“Supreme People’s Assembly.”23The Assembly ratified the constitution inSeptember 1948 and named Kim Il Sung premier.24He officially establishedthe Democratic People’s Republic of Korea on September 9, 1948, and it wasrecognized by the USSR as the only lawful government in Korea.25In an effort to unify the peninsula under Communist control, Kim Il Sunglaunched an invasion of the South on June 25, 1950, with the approval of theSoviet Union and the People’s Republic of China.26When word of theCommunist invasion reached the United Nations, the Security Council swiftlypassed a resolution condemning the invasion, calling for the immediate end offighting and demanding that “the authorities in North Korea” withdraw northof the 38th parallel “forthwith.” Passed when the Soviet Union was boycottingUN participation, this resolution called upon all UN members to refrain fromassisting North Korea.27A second Security Council resolution on June 27, 1950,

called for UN members “to provide such assistance to the Republic of Korea asmay be necessary to repel the armed attack and to restore international peaceand security in the area.”28Backed by these two UN resolutions, US PresidentHarry Truman committed American forces to turn back the North’s aggression.By mid-September 1950, 16 nations contributed ground forces to the UNCommand.29UN troops recaptured Seoul on September 2830and, by October 1,had pushed northern troops back to the 38th parallel and beyond, reachingPyongyang on October 20 and the Chinese border on October 26.31Fightingcontinued as the People’s Republic of China entered the war, but, on June 1,1951, UN Secretary-General Trygve Lie announced that the objectives of theJune 25 and June 27, 1950, United Nations resolutions had been carried out.32While armistice negotiations began in July 1951, fighting continued formore than two years.33At long last, an armistice was signed on July 27, 1953,establishing a military boundary, roughly at the 38th parallel, that wouldbecome thede factoborder between North and South Korea.34In the end, thewar that lasted a little over three years had resulted in approximately fourmillion casualties.35After the Korean War, Kim Il Sung eliminated domestic opposition and allthose believed to pose a threat to his power in the North.36He became theabsolute ruler of North Korea “and set about transforming North Korea intoan austere, militaristic, and highly regimented society.”37Dissent from orcriticism of Kim Il Sung became a punishable crime.38Reports noted that“citizens were arrested, and some even sent off to one of the country’s extensivegulags, for inadvertently defacing or sitting on a newspaper photograph of theGreat Leader or his son and chosen successor.”39

S.C. RES. 83, UN Doc. S/RES/83 (Jun. 27, 1950),supranote 22, at 4-5.The sixteen allied nations to contribute troops to the UN Command were: Australia, Belgium,Canada, Colombia, Ethiopia, France, Greece, Netherlands, New Zealand, Philippines, Republic ofKorea, South Africa, Thailand, Turkey, the United States, and the United Kingdom.30SeeMARTIN,supranote 13, at 79.31See History of Korea, supranote 4.32SeeVATCHER,supranote 15, at 18; FEHRENBACH,supranote 14, at 94.33See id.34See History of Korea, supranote 4; MARTIN,supranote 13, at 87;Background Note, supranote 9(noting that signatories to the armistice included the North Korean People’s Army, the ChinesePeople’s Volunteers, and the UN Command).35See History of Korea, supranote 4; LEE,supranote 1, at 379-81.36See History of Korea, supranote 4; MARTIN,supranote 13, at 94; OBERDORFER,supranote 5, at10-11; SCALAPINO& LEE,supranote 17, at 463.37History of Korea, supranote 4.38SeeOBERDORFER,supranote 5, at 21.39OBERDORFER,supranote 5, at 21;see infrasection II.A.2.2829

Kim Il Sung relied on the Soviet Union and China for financial andmilitary support.40Especially when the schism developed between the SovietUnion and China in the 1960s, North Korea had to walk a fine line, keepingon good terms with both countries by avoiding complete dependence oneither one.41In order to do so, Kim Il Sung promulgated an ideology hecalledjuche,an independent form of Korean Socialist thought that emphasizeda supreme leader’s absolute control over his people.42In the late 1980s and early 1990s, North Korea experienced a precipitousdecline in aid as Communism fell in Eastern Europe and the Soviet Unionwas dissolved.43Relations with China were strained by China’s establishmentof diplomatic ties with South Korea in 199244and China’s efforts to put tradewith North Korea on a cash basis. Aside from economic and diplomaticimpacts, the fall of the socialist bloc and strained relations with Chinaprompted North Korea to abandon its campaign for a single Korean seat atthe UN and, in September 1991, North and South Korea were both admittedto the UN as separate nations.45North Korea’s original constitution, which was adopted in 1948, wasreplaced with a new constitution in 1972, establishing Kim Il Sung as president.Revised in 1992 and 1998, the current constitution asserts that the position ofpresident is permanently vested in the deceased Kim Il Sung. Although thehead of state is ostensibly the president of the Presidium of the SupremePeople’s Assembly, North Korea’s absolute dictator Kim Jong Il rules from thepost of chairman of the National Defense Commission.46Kim Jong Il, the oldest recognized son of Kim Il Sung, was born onFebruary 16, 1942, most likely in the Soviet Union, although the regimeclaims he was born on Mt. Paektu, a place revered by Koreans as the legendarysource of the Korean identity.47During the Korean War, Kim Jong Il lived inexile in China, although he did not interact with Chinese people or learn theirlanguage.48After returning to North Korea, where he received his formaleducation, including graduating from Kim Il Sung University, he was assigned

SeeOBERDORFER,supranote 5, at 153;Background Note, supranote 10.See id.; see alsoSCALAPINO& LEE,supranote 17, at 576-587 (describing the development oftensions within the communist world).42SeeDOWNS,supranote 12, at 13; NICHOLASEBERSTADT, KOREAAPPROACHESREUNIFICATION132 (Armonk, National Bureau of Asian Research, 1995); KONGDANOH& RALPHC. HASSIG,NORTHKOREATHROUGH THELOOKINGGLASS16-24 (Brookings Institution Press, 2000).43See Background Note, supranote 9;North Korea,ENCYCLOPEDIABRITANNICA(2006),available athttp://search.eb.com/eb/article-34951 [hereinafterNorth Korea].44See Background Note, supranote 9;North Korea, supranote 43.45See Background Note, supranote 9.46SeeSCALAPINO& LEE,supranote 17, at 790, MARTIN,supranote 13, at 155.47SeeMARTIN,supranote 13, at 187.48See id.at 216.4041

to work in the Central Committee of the Workers’ Party, “the regime’s nervecenter.”49Due to apparent clashes with his uncle, a contender for leadershipof the regime, it is believed that Kim was sent to work for the party chapter inNorth Hamgyong Province.50He is also believed to have kept informationregarding food shortages at that time from coming to his father’s attention.51His succession was largely assured, however, when he returned to work at theCentral Committee and, in 1973, was elected to the politburo and namedParty Secretary for Organization and Guidance.52In spite of Marxist ideals tothe contrary, Kim Il Sung chose his son as his successor.53In the mid-1980s,Kim Jong Il took “day-to-day charge of the party, the military, theadministration – even international affairs.”54In 1993, fearful that he mightexperience the fate of his family friend Nicolae Ceausescu, Kim Jong Il utilized,his newly granted position as chairman of the party’s military commission totransform North Korea from a party dictatorship to a military dictatorship.55International concerns raised by the decisions and policies of Kim Jong Ilare discussed in depth in other sections of this report.

B. Economic DevelopmentNorth Korea has sufficient resources to be a functioning, growing economythat can employ its people and generate significant trade with other nations.However, by 1990 economic mismanagement, political and economic isolation,and over-militarization had left the country in economic shambles.The northern half of the Korean peninsula is rich in mineral resources,including sizeable, valuable deposits of coal, copper, gold, iron ore, tungsten,and graphite.56Power can be produced both from the country’s coal reservesand from several major river systems that support hydropower. North Koreais said to have high rates of literacy but its readers are unable to obtain materialsnot produced by the regime itself; the people of North Korea are thereforeisolated from the outside world and likely ignorant of modern informationtechnologies.57

Japanese colonial rule during the first half of the 20th century industrializedthe country. The Japanese concentrated industrial activity in the North, duein part to the proximity to mines, timber, and hydropower.58In addition tomining, industries included steel, chemical, fertilizer, and textile production.59Unfortunately, the Korean War destroyed many of the factories and infrastructureinherited from the Japanese colonial period. Following the war, North Korearebuilt its industries and infrastructure, largely with subsidies from the SovietUnion.60Today, economic development remains stunted by excess spendingon the military combined with the failure to invest in developing substantialdomestic industrial capacity.After the Korean War, the North Korean government imposed a Soviet-styled, centrally planned command economy.61Until recently, private tradehas been almost entirely prohibited. Following the Soviet model, economicdecisions have been implemented through a series of long-range multi-yearplans, in which planners decide what industries should be created, what thoseindustries produce and in what quantities.62Distribution of production,including agricultural production, was also centrally controlled. One historianhas said, “North Korea offers the best example in the post-colonial developingworld of conscious withdrawal from the capitalist world system in a seriousattempt to construct an independent, self-contained economy.”63The country became increasingly dependent on aid and subsidies from theSoviet Union and other socialist bloc countries, as well as illicit economicactivity, including drug production and trafficking and counterfeiting thatwere (and still are) used to generate hard currency.64In the late 1980s, facingits own currency difficulties, the Soviet Union began demanding payment forpast and current aid, which North Korea was unable to make. By 1987, aidfrom the Soviet Union had dropped significantly.65The 1990 collapse of the Soviet Union and Eastern bloc had a devastatingimpact on North Korea’s economy.66For example, it lost most of its importedcoal and refined petroleum.67Between 1990 and 1993, imports from Russiafell by 90 percent. North Korea was unable to respond – or in any event didSee id.See id.60See generallyBRUCECUMINGS, KOREA’SPLACE IN THESUN: A MODERNHISTORY430-35 (W.W.Norton & Co., 2005).61See id.at 430;see alsoJOSEPHSANGHOON, THENORTHKOREANECONOMY: STRUCTURE ANDDEVELOPMENT70 (Hoover Institution Press, 1974).62See id.63SeeCUMINGS,supranote 60, at 429.64See id.at 19.65See id.at 20.66MARCUSNOLAND, FAMINE ANDREFORM INNORTHKOREA4-5 (Institute for InternationalEconomics Working Paper, 2003).67See id.5859

not respond – and its own economy collapsed. Data suggests that the economymay have shrunk by 30 percent between 1991 and 1996.68Today, North Korean industry is operating at a fraction of capacity.69Unemployment outside the agricultural sector may be as high as 30 percent.70The country remains heavily dependent on foreign assistance, including foodaid, from South Korea and China.North Korea has experimented with modest reforms over the years, includingsome nascent special economic zones.71In July 2002, Kim Jong Il enacted aseries of potentially significant measures that included some price reforms.However, given the current political and security climate, the effect of all ofthese initiatives remains hard to assess, and it is probably too early to do so.72It is also uncertain whether these reforms are transient or whether they willform the initial stages of a longterm overhaul of the North Korean economyalong a “Chinese model” or some other pattern.73Indeed, in October 2005,the government rolled back some of these measures, reinstituting the rationingsystem and banning the private trade of grain.Apart from these measures, the country’s largely self-imposed isolation frommuch of the world likely hinders economic progress.74Its recent missile tests,in the face of threats of sanctions, further imperil its fragile recovery. Thecountry continues to export narcotics and counterfeit goods, includingcigarettes, pharmaceuticals, and US, Chinese, and European Union currency.75No discussion of the North Korean economy can be complete withouthighlighting the country’s oversized military. Notwithstanding the collapse ofthe economy and two decades of chronic food crises, Kim Jong Il has institutedtheSongun Chongch’ipolicy, which provides the military with a disproportionateshare of the country’s resources.76Official estimates state that approximately

SeeMarcus Noland, TESTIMONY BEFOREU.S. SENATEFOREIGNRELATIONSSUBCOMMITTEE ONEASTASIAN ANDPACIFICAFFAIRS, Jul. 8, 1997.69See Background Note: North Korea, supranote 10.70SeeSTEPHANHAGGARD& MARCUSNOLAND, HUNGER ANDHUMANRIGHTS: THEPOLITICS OFFAMINE INNORTHKOREA(U.S. Committee for Human Rights in North Korea, 2005), at 21[Hereinafter HAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS].71See generallyMARCUSNOLAND, A NEWINTERNATIONALENGAGEMENTFRAMEWORK FORNORTHKOREA?Political Economy of North Korea: Historic Background and Present Situation,(InternationalInstitute for Economics, 2005), at 20 [hereinafter NOLAND,Political Economy of North Korea];Young-Sun Lee & Deok Ryong Yoon,The Structure of North Korea’s Political Economy: Changesand Effects(Korean Institute for International Economic Policy, 2004), at 33-35.72SeeNOLAND,Political Economy of North Korea, supranote 71, at 36;See, e.g., Economic ReformsAre Changing Hardline North Korea Some Say,AGENCEFRANCEPRESSE, Sept. 10, 2006.73SeeLee & Yoon,supranote 71, at 38.74SeeNOLAND,Political Economy of North Korea, supranote 71, at 36.75See Background Note, supranote 9.76SeeLee & Yoon,supranote 71, at 27-29.68

15 percent of GDP is devoted to the military, but many analysts believe thatthe actual amount is between 15 and 25 percent, with some estimates statingit is as high as 30 percent.77If the number is greater than 17.7 percent, itwould mean North Korea has the highest military expenditures as a percent ofGDP of any country in the world.78The military is, in fact, an entire second economy in North Korea, and isrun separately from the rest of the economy. The military is given priority formaterials and resources – including food – and the rest of the economyreceives the remainder.79It also operates its own defense manufacturing facilities,farms, mines, and banks. The military is estimated to employ over one millionsoldiers and other support personnel. In addition, the country maintains amassive reserve of 4.7 million people.80North Korea appears willing to maintainthe current size of its military and military expenditures, notwithstanding itsadverse effects on the rest of the civilian economy.81The military economyalso plays a role in generating exports and hard currency through its sizeableexport sales of weapons.82Arms exports are estimated at approximately $100million to $600 million annually.83

C. Economic and Social IndicatorsThe population of North Korea is estimated to be approximately 22.7million.84Conservative estimates of mortality rates during the famine suggestas many as one million and possibly many more people died, or 3 to 5 percentof the pre-famine population.85Because of the insular and isolated stance of the North Korean government,it is difficult to make reliable estimates of the usual socio-economicindicators.86For 2004, the Bank of Korea estimated North Korea’s grossdomestic income (GDI) at $20.8 billion, 1/33rd of South Korea’s, and its percapita GDI at $914, approximately 1/15th that of South Korea.87See id.at 27-28 and 27, n. 5.SeeWORLDFACTBOOK,supranote 57 (noting military expenditures as percent of GDP,e.g.,Eritrea – 17.7 percent; Jordan – 11.4 percent; Saudi Arabia – 10 percent; China – 4.3 percent;US – 4.06 percent; Iran – 3.3 percent; South Korea – 2.6 percent).79SeeLee & Yoon,supranote 71, at 29.80See id.81See id.at 27.82See id.at 29.83See World Military Expenditures and Arms Transfers(US Department of State, 2005),available athttp://www.state.gov/t/vci/rls/rpt/wmeat/1999_2000/; Jon Herskovitz,N. Korea’s Missiles FindFewer Buyers,GULFTIMES, Sept. 6, 2006 (stating a US government study in 2004 found $560million in missile sales in 2001 alone).84See Background Note, supranote 9.85SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70.86North Korea does not release its own economic statistics. Thus, all information is from esti-mates and analysis by secondary sources.87Gross Domestic Product of North Korea in 2004(Bank of Korea, May 31, 2005).7778

GDP is roughly divided as follows: 30 percent agriculture (including food,forestry, and fishing), 34 percent industry, and 36 percent services.88Themajority of the industrial production is from mining (18.5 percent of GDP).89Of the services sector, approximately 23 percent represents governmental services.90The Bank of Korea estimated North Korea’s trade volume in 2004 amountedto $2.9 billion, 1/167th of South Korea’s trade volume.91China is the North’slargest trading partner. Bilateral trade between North Korea and China wasestimated to be $1.5 billion in 2005.92Life expectancy at birth is 63.6 years, the infant mortality rate is 42 deathsper 1,000 live births, and the mortality rate for children under 5 is 55 per1,000.93The rate of malnutrition for children under 5 years old is 23.9percent.94Many other socio-economic indicators are unavailable or unknown,due to the government’s failure to release such information or allow outside,independent assessments.

II. The CrisisA. Major Human Rights ConcernsFor years, North Korea has denied that there are any human rights violationsin the country. In 1988, for example, the North Korean Ambassador to theUnited Nations wrote to the Minnesota Lawyers International Human RightsCommittee that violations of human rights do not take place and are“unthinkable” in North Korea.95In 1994, an official publication,The People’sKorea,proclaimed “there is no ‘human rights problem’ in our Republic eitherfrom the institutional or from the legal point of view.”96Despite these assertions, however, North Korea is often referred to byknowledgeable observers as one of the worst human rights situations in the

world today.97The UN General Assembly recognized this when, onDecember 15, 2005, it adopted a resolution expressing its deep concern about“systemic, widespread and grave violations of human rights” in North Korea.98But because of the self-imposed isolation of the country, documenting the fullextent of the abuses of Kim Jong Il and his regime is an impossible challenge.Only in the last 10 years – with the exodus of North Koreans escaping to fleethe famine – has even a partial view of the terrible situation come to light.North Korea has been highlighted for attention by many human rightsorganizations and governments because of its human rights record. At thesame time, it has also signed – and essentially ignored – many of the keyhuman rights treaties, including the International Covenant on Civil andPolitical Rights (ICCPR)99, International Covenant on Economic, Social, andCultural Rights (ICESCR)100, Convention on the Elimination of All Forms ofDiscrimination Against Women (CEDAW)101, and Convention on the Rightsof the Child (CRC).102This report is not intended to provide a complete overview of the humanrights situation in North Korea.103Instead, by examining the body of existingevidence, this report presents two key groupings of human rights abuses –food policy and famine, and the treatment of political prisoners – that, intheir scale, scope, and severity fall clearly within the definition of “crimesagainst humanity.”104In addition, the abduction of foreigners is also examined.

See, e.g., Tobacco Firm Has Secret North Korean Plant,THEGUARDIAN(UK), Oct. 17, 2005(stating North Korea “is regarded by some as having the worst human rights record in theworld”); Nicholas Kristof,The Hermit Nuclear Kingdom,NEWYORKTIMESBOOKREVIEW, Feb.10, 2005 (North Korea is “the worst human rights violator in the world”); Roberta Cohen,Talking Human Rights With North Korea,WASHINGTONPOST, Aug. 29, 2004 (North Korea “is theworld’s worst human rights violator”); Robert Windrem,Death, Terror in N. Korea Gulag,NBCNEWS, Jan. 15, 2003 (quoting U.S. Senator Sam Brownback: “It’s one of the worst, if not theworst situation — human rights abuse situation — in the world today.”)98G.A. RES. 60/173, UN Doc. A/RES/60/173 (Dec. 16, 2005).99North Korea acceded to the ICCPR on September 14, 1981.See Status of Ratifications of thePrincipal International Human Rights Treaties,Office of the UN High Commissioner for HumanRights, Jun. 4, 2004.100North Korea acceded to the ICESCR on September 14, 1981.See id.It is important to notethat this predated North Korea’s major problems with food policy and famine.101North Korea acceded to CEDAW on February 27, 2001.See id.102North Korea ratified CRC on September 21, 1990.See id.103See, e.g., White Paper on Human Rights in North Korea(Korean Institute for National Unification,2006) (providing a highly detailed overview of the human rights situation in North Korea).104See infraAppendix III.97

1. Food Policy and Famine105Between 1995 and 1998, North Koreans suffered through a catastrophicfamine that resulted in at least one million deaths, and possibly many more,from starvation and hunger-related diseases.106This represented between threeand five percent of the population.107While the acute famine has passed, thefood emergency continues to this day. Some human rights organizationsrecently warned that North Korea is once again on the brink of famine.108Asof 2004, out of the population of 22 million, 57 percent of the people do nothave sufficient food to stay healthy, 36 percent of the people are under-nourished, and 37 percent of children under 6 years old suffer from chronicmalnutrition.109Perhaps the most striking example of the malnutrition’simpact is that in 2003 the Korean People’s Army (KPA) was forced to reduceits height requirement for draftees from five feet, eleven inches (150 cm) tallto five feet, two inches (125 cm) tall.110Even though these statistics are ampleevidence to demonstrate that malnutrition is a problem, North Korea continuesto inhibit aid distribution and denies access to UN agencies and NGOs to 42of the 203 North Korean counties. The World Food Programme (WFP) isunwilling to provide food assistance to those counties without appropriatemonitoring being in place.111To discuss why UN Security Council action is necessary, the followingsection first presents the legal context for North Korea’s obligations to feed itspeople. Second, the antecedents of North Korea’s food crisis are reviewed.

For comprehensive treatments of the North Korean famine,seeHAGGARD& NOLAND,HUNGER ANDHUMANRIGHTS,supranote 70; STEPHANHAGGARD& MARCUSNOLAND, FAMINEINNORTHKOREA: MARKETS, AID,ANDREFORM(Columbia University Press, forthcoming 2007)[hereinafter, HAGGARD& NOLAND, FAMINE], and MARCUSNOLAND, FAMINE ANDREFORM INNORTHKOREA(Institute for International Economics Working Paper, 2003). This section reliesheavily on these works.106This is a conservative estimate based on studies accepted by Haggard, Noland, and others.See,e.g.,HAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 18. AndrewNatsios, former head of the U.S. Agency for International Development, endorsed the view thatas many as 2.5 million people died during the famine.SeeANDREWNATSIOS, THEPOLITICS OFFAMINE(United States Institute of Peace, 1999), at 6,quotingHWANGJONGYUP, NORTHKOREA:TRUTH ORLIES(1998).107SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 18.108SeeKay Seok,North Korea is Headed Toward Another Famine,INTERNATIONALHERALDTRIBUNE, Apr. 5, 2006; A MATTER OFSURVIVAL: THENORTHKOREAN GOVERNMENT’SCONTROLOFFOOD AND THERISK OFHUNGER(Human Rights Watch, 2006), at 25 [hereinafter, A MATTEROFSURVIVAL]. Recent flooding has increased the likelihood that North Korea is on the brink offamine once again.SeeJon Herskovitz,UN Food Agency Says North Korea Accepts Aid Offer,REUTERS, Aug. 17, 2006.109See North Korea Famine In Detail,Reuters Foundation Alert Net,available athttp://www.alert-net.org/db/crisisprofiles/KP_FAM.htm?v=in_detail.110SeeNOLAND, FAMINE ANDREFORM INNORTHKOREA,supranote 105, at 10, n. 16.111SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 25; JeffreyRobertson,North Korea Plays Politics with Food Aid,ASIATIMES, Oct. 1, 2005.105

Third, background on the “slow motion” famine is provided. Fourth, thefamine itself will be described, followed by a short discussion about thefamine’s impact. Next, North Korea’s use and misuse of international assistanceis reviewed. Finally, the nature of the continuing crisis will be followed by asummary of key findings.This section concludes, as have many other assessments, that the NorthKorean famine was not caused by a natural disaster, but rather by the NorthKorean government’s own failures. Furthermore, the government has failed toaddress or remedy the fundamental circumstances that led to the prior famine.Instead, Pyongyang continues emphasizing other priorities, such as supportingan oversized military, pursuing weapons of mass destruction (WMD) programs,exerting control over the citizenry, and maintaining its isolation from theoutside world.112North Korea remains heavily dependent on outside foodassistance, yet it has demonstrated repeatedly its willingness to jeopardize,sacrifice, or reject that assistance – along with jeopardizing the health and livesof its citizens – in pursuing other priorities.a. Legal Context: The Fundamental Right to FoodThe right to adequate food is central to the ability to enjoy and exercise allother human rights.113If a person is chronically hungry and malnourished, heor she cannot meaningfully enjoy the other inalienable rights of life.114Since its inception, the United Nations and its members have recognizedthe fundamental nature of the right to food. Initially this right was hortatory,as presented in the Universal Declaration of Human Rights, which states that“everyone has the right to a standard of living adequate for the health andwell-being of himself and his family, including food.”115Subsequently, thisright was codified in the ICESCR, which reaffirms “the right of everyone to . . .adequate food” and “the fundamental right of everyone to be free from hunger.”116

SeeMARCUSNOLAND, SHERMANROBINSON& TAOWANG, FAMINE INNORTHKOREA: CAUSESANDCURES(Institute for International Economics, 2002), at 1-2.113SeeUNITEDNATIONSCOMMITTEE ONECONOMIC, SOCIAL,ANDCULTURALRIGHTS,SubstantiveIssues Arising From The Implementation of the International Covenant on Economic, Social, andCultural Rights,General Comment No. 12, at�57 (“The human right to adequate food is ofcrucial importance for the enjoyment of all rights.”)114See id.115UNIVERSALDECLARATION OFHUMANRIGHTS, G.A Res. 217A (III), UN Doc. A/810,adoptedDec. 10, 1948, at art. 25.116INTERNATIONALCOVENANT ONECONOMIC, SOCIAL,ANDCULTURALRIGHTS, G.A. Res. 2200A(XXI),adoptedDec. 16, 1966,entered into forceJan. 3, 1976, at art. 11. North Korea acceded tothe ICESCR on Dec. 14, 1981.112

The ICESCR and subsequent instruments recognize that nations have theresponsibility not only to recognize the right to food, but also to protect,respect, and fulfill that fundamental right. The ICESCR, for example, statesthat “[t]he States Parties will take appropriate steps to ensure the realization ofthis right, recognizing to this effect the essential importance of internationalcooperation based on free consent.”117Similarly, the CRC states that “Partiesshall . . . take appropriate measures . . . to combat disease and malnutrition . . .through,inter alia,the application of readily available technology and throughthe provision of adequate nutritious foods.”118It goes on to say that “StatesParties, in accordance with national conditions and within their means . . .shall in case of need provide material assistance and support programs,particularly with regard to nutrition.”119These international norms recognize that government has the primaryresponsibility for ensuring the right to adequate food. This is because thenation-state exercises enormous power over all aspects of its people’s lives –even in democratic, market-oriented societies. This does not always mean thatnations have an obligation literally to feed their people, except in times ofemergency. It does mean, however, that the state is responsible for theconditions that exist in its country – including conditions that may cause orresult in hunger – and the state is obligated to adopt policies that respect andsatisfy the fundamental right to food.ICESCR General Comment No. 12 defines the obligations that the state mustfulfill in order to implement the right to adequate food at the national level:• The obligation torespectexisting access to adequate food requires statesparties not to take any measures that result in preventing such access.• The obligation toprotectrequires measures by the state to ensure thatenterprises or individuals do not deprive other individuals of their accessto adequate food.• The obligation tofulfill(facilitate) means the state must proactivelyengage in activities intended to strengthen people’s access to and use ofresources and means to ensure their livelihood, including food security.120

Nobel Prize-winning economist Amartya Sen has argued that there is nolonger an excuse for famine anywhere.121Others have adopted this view aswell.122According to this argument, famines or acute food shortages do notresult from poor growing conditions, drought, floods, or other naturaldisasters. Instead, food crises are caused by government policies that fail torespond to a country’s agricultural circumstances, fail to respond to naturalconditions or events, deny citizens the political rights to influence thegovernment and its policies, and/or hinder the ability of citizens to feed andhelp themselves.123Even if this is not universally true, the argument applies to North Korea.Logically, a government that can mobilize and sustain a modern army withover one million soldiers, pursue nuclear weapons, and launch long-rangemissiles can also successfully adopt and implement policies that protect itscitizens from food scarcity and insecurity. But the North Korean governmenthas failed to provide these protections for decades.Pyongyang has demonstrated repeatedly that keeping its population properlyfed is a low priority for the government. For example, an estimated 15 to 30percent of North Korea’s GDP is used to support the army, even during timesof famine and food insecurity.124Further, the government has repeatedly putinternational food aid at risk, both by the restrictions it places on that aid andby actions that threaten to end that aid, such as the launch of missiles and therefusal to participate in the Six-Party Talks. Finally, the government hasrefused to undertake the fundamental changes necessary to remove the threatof famine, food insecurity, and dependence on foreign food aid – aid whichcould evaporate at any time.

See, e.g.,AMARTYASEN, FAMINES ANDOTHERCRISES, in DEVELOPMENTASFREEDOM160, 175(Anchor, 1999).122See, e.g.,MEREDITHWOO-CUMMINGS, THEPOLITICALECOLOGY OFFAMINE: THENORTHKOREANCATASTROPHE ANDITSLESSONS(Asian Development Bank Institute 2002), at 1 (“Senhas effectively demonstrated that famine is rarely if ever about insufficient stocks of food; it isabout the politics of food distribution”); ALEXDEWAAL, FAMINECRIMES: POLITICS ANDTHEDISASTERRELIEFINDUSTRY INAFRICA117 (Indiana University Press, 1997), at 7. JOACHIM VONBRAUN, TESFAYETEKLU, & PATRICKWEBB, FAMINE AS THEOUTCOME OFPOLITICALPRODUCTIONANDMARKETFAILURES, IDS BULLETIN(No. 4, 1993), at 73.123See, e.g.,JEANDREZE& AMARTYASEN, HUNGER ANDPUBLICACTION46 (Oxford UniversityPress, 1989).124North Korea officially acknowledges that 15 percent of GDP is consumed by the military.Many observers believe that the actual figure is much higher.SeeLEEYOUNG-SUN& YOONDEOK-RYONG,The Structure of North Korea’s Economy: Changes and Effects,A NEWINTERNATIONALFRAMEWORK FORNORTHKOREA? (American Enterprise Institute, 2005), at 52; Yoel Sano,Military Holds the Key,ASIATIMES, Feb. 18, 2005.121

b. Antecedents of the Food CrisesThe North Korean government blames the famine of the 1990s on catastrophicflooding that occurred in 1995 and 1996. These natural disasters, however,were not the primary causes of the famine, nor even secondary ones. In reality,the famine was well under way by 1995, rooted in five decades of failedgovernmental policies that left the population highly vulnerable to food shortages.So long as Korea is divided, North Korea will face a permanent challengeto feed itself. Korea’s historical economic development tended to concentrateagriculture in the South, with its more favorable climate and the majority ofthe arable land. Because the North is colder, less fertile, and more mountainous,it has been the locus of mostly industrial activity.125Thus, splitting the Koreanpeninsula deprived North Korea of its historical breadbasket.126As a result, North Korea has had to compensate for this loss. Onlybetween 19 and 22 percent of North Korea, however, is considered arable.127Thus, North Korea would need to develop an economy able to purchase largequantities of imported food – which it has not done. The catastrophic famineof the 1990s and acute food shortages that continue to threaten NorthKoreans today have their direct roots in the government’s failure for fivedecades to adopt policies addressing the basic fact that North Korea cannotproduce sufficient food on its own to feed its population.128Like most Communist countries, North Korea established a centrallyplanned economy implemented through a series of multi-year industrialplans.129In agriculture, farmers and farmland were organized into collectivesand state farms.130All planning and production was centralized.131Privateproduction was prohibited, as were private markets and trade.132While drawing on the Communist planning framework, North Koreanfounder Kim Il Sung organized North Korean life around the ideological tenetofjuche,or a “spirit of self reliance.”133As with other sectors, North Koreanagriculture and food policies also came under the same philosophy, withPyongyang imposing self-reliance not only at the national level, but in a lessconsistent way at the provincial and county levels as well.134SeeHAGGARD& NOLAND, FAMINE,supranote 105, at 1.SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 12-13.127SeeWORLDFACTBOOK,supranote 57.128SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 12-13; NOLAND,supranote 105, at 2-4.129See supraSection I.C.130SeeNOLAND,supranote 105, at 2-3; HAGGARD& NOLAND, FAMINE,supranote 105, at 2.131SeeHAGGARD& NOLAND, FAMINE,supranote 105, at 2.132SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 3.133See supraSection I.A.134SeeNOLAND,supranote 105, at 3; HAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 12.125126

Claiming thatjuchecould be applied to agriculture was both misleadingand destructive. The description was misleading because North Korea reliedheavily on the Soviet Union – not only for food imports and food subsidies,but also for other necessities of modern agriculture including fertilizer,insecticides, petroleum, and other fuel.135The philosophy was destructivebecause it resulted in sacrifices by the population wheneverjuchefell short ofreality, which the food supply constantly did.136The agricultural form ofjucheoften drove the government to adoptshortsighted, ill-advised policies in futile attempts to reach self-reliance. Forexample, over the years North Korea attempted to create more arable land, butthese attempts instead led to a self-defeating cycle: deforestation led to soilerosion and run-off, which in turn caused silting in rivers and eventuallyflooding, which then destroyed harvests and further reduced available farmland.Also, failure to rotate crops, intensive re-cropping of land, and too heavy areliance on fertilizers depleted the soil, leading to even more reductions inavailable fertile land and a steadily declining agricultural output.137Another factor that exposed much of the population to the threat ofhunger was the degree to which the government strictly controlled thedistribution of food. Food was distributed through two state-controlledchannels. While farm workers were allowed to retain an annual smallallowance from the harvest, the rest of the population – approximately 13.5million people and 62 percent of the population – depended entirely onmonthly or biweekly rations from the Public Distribution System (PDS).138In particular, city dwellers lived at the mercy of the rationing system.139The PDS allowed the government to exert further control over its citizensand to discriminate against less-favored and disfavored persons. The food aperson received depended on that person’s government-determined politicalstatus – members of the military, party officials, those in favored occupations,and those perceived as loyal to the government received more food, whilethose deemed less important or less supportive of the regime received lessfood.140Thus, privileged industrial workers received 900 grams of food a day,while ordinary workers received 700 grams, retired citizens 300 grams, andchildren between the ages of 2 and 4 and prisoners just received 200 grams.141

In sum, long before the food crises began in the late 80s and early 90s,North Korea faced significant challenges feeding its own people because it hadadopted policies that made the country vulnerable to food insecurity andfamine and too inflexible to respond to political, economic, or climaticchanges.c. The “Slow Motion” FamineThe North Korean famine is often described as happening in slow motion.142The description emphasizes that the famine could and should have beenanticipated by the government. It is equally apt to note that the descriptionimplies the government ignored or consciously refused to take steps to preventthe catastrophe, or to end it once it was under way, for instance by rapidlyseeking external food supplies. This famine did not result from a suddennatural disaster; it was inflicted by the state on its own people.As discussed above, the country’s geographic limitations and the government’sfutile stress onjucheself-reliance created an agricultural system highlydependent on importing fuel and other inputs. In the late 1980s, when theSoviet Union was faced with its own economic and monetary problems, itbegan demanding payment from North Korea for past and current aid –amounts North Korea could not repay.143When the Cold War ended and theSoviet Union collapsed in 1991, trade between the two countries ceasedaltogether and the North Korean economy collapsed.144Without Soviet aid,the flow of inputs to the North Korea agricultural sector ended, and thegovernment proved too inflexible to respond.145As a result, food productiondecreased precipitously.For a time, China filled the gap left by the Soviet Union’s collapse andpropped up North Korea’s food supply with significant aid.146By 1993, Chinawas supplying North Korea with a staggering 77 percent of its fuel importsand 68 percent of its food imports.147Thus, North Korea replaced dependenceon the Soviet Union with dependence on China – with predictably direconsequences. In 1993, China faced its own grain shortfalls and need forhard currency, and it sharply cut aid to North Korea.148

While the cutoff in Chinese aid was the immediate trigger for the faminethat followed149, it did notcausethe famine. Before Chinese aid ended, NorthKorean food production was in a steady decline; the disaster that followed waslargely the result of the government’s failure to respond to this decline.150Eventhe catastrophic flooding that occurred in the second half of 1995 and againin 1996151did not cause the famine. According to WFP estimates, the countrywas already facing a food deficit at the time the floods hit.152The famine in the mid-1990s was preceded by several years of foodshortages. Available data suggests that death rates began to increase in 1993and 1994, thus marking the famine’s beginning.153In 1994, official NorthKorean broadcasts admitted that widespread hunger existed, though thegovernment was not forthcoming about the scope of the disaster.154In May1995, the government finally acknowledged food shortages and requestedassistance from Japan.155As Haggard and Noland conclude, the faminecannot be blamed on the floods or on the loss of aid from the Soviet Unionand China. Rather, it must be blamed on government actions and inactions:There is no question that bad weather made a difficultdecision worse, but it is not obvious that the floods werethe primary or even proximate cause of the North Koreanfamine . . . . It is essential to place the effect of the weatherin the context of two other crucial factors: the seculardecline in the North Korean economy, and in theagriculture sector in particular; and the failure of thegovernment to respond to this crisis by maintainingadequate commercial imports or by making clear andtimely appeals to the international community. Thedecline in the economy resulted in part from externalshocks, but even more from the misguided effort to pursuea strategy of self-sufficiency, including in food.156

See id.at 14;see also The Worst of Friends,TIMEMAGAZINE, Jul. 17, 2006 (noting “China’sreduction of rice supplies to the North—part of a previous effort to force Pyongyang to negotiateover its nuclear-weapons program—contributed to a devastating famine.”)150SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 13.151The North Korean government estimated that the flooding caused 5.4 million people to bedisplaced and 330,000 hectares of land lost with their harvests destroyed, as well as nearly 2million tons of grain. A second disastrous flood occurred in 1996. In a cruel irony, the floodswere followed by some of the worst droughts in the country’s history as well as tidal waves thatdestroyed additional farm land.SeeNOLAND,supranote 105, at 3; OBERDORFER,supranote 5, at 370.152See id.at 8.153SeeNOLAND,supranote 105, at 5154SeeNOLAND,supranote 105, at 5.155SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 14; NOLAND,supranote 105, at 3.156HAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 14.149

To summarize, the primary causes of the famine included (1) amisguided and futile attempt to force self-reliance in agriculture on a countrythat is incapable of reliably producing enough food to feed 22 million people;(2) the creation of an agricultural system highly dependent on fuel, fertilizer,and other inputs, subsidized by outside aid; (3) a long-term decline in theeconomy in general; (4) the loss of trade and subsidies from the Soviet Unionand later China; and, most importantly, (5) the government’s failure torespond to these circumstances.d. The FamineDue to North Korea’s insularity and self-imposed isolation, the conditionsthat existed as the famine unfolded are still difficult to assess. The onlysources are refugees and those few scholars and aid workers that were allowedlimited access to the country during and after the famine’s height. Even thoselimited sources provide a shocking story. In December 1995, the Food andAgriculture Organization (FAO) and WFP warned that 2.1 million childrenand 500,000 pregnant women faced immediate starvation, and millions morecould face the same the following summer.157In January 1996, theInternational Committee of the Red Cross issued a statement that 130,000people were on the brink of starvation, and 500,000 more would be in thesame position come the fall harvest.158The government had created a system in which 62 percent of the population –13.5 million people – depended on government rations for basic subsistence.159In response to problems with procuring food, however, the governmentproceeded to continually reduce rations. With the shut-off of Soviet aid in1987, daily grain rations were reduced for the average recipient by 10 percent.160In 1992, rations from the PDS were cut an additional 10 percent, and theserations were not distributed to everyone.161Then, in 1994, the PDS system began to collapse altogether, ultimatelybecoming meaningless. Rations were cut once again, this time from 450 to400 grams a day, although there were accounts from some refugees that manypeople actually were receiving less than 150 grams from the PDS. Otherrefugees reported that in many provinces there were no PDS rations beingdistributed at all.162Furthermore, the government completely eliminated PDS shipments to fourmountainous northeast provinces (North and South Hamgyong, Yanggang,SeeNOLAND, ROBINSON& WANG,supranote 137, at 4.See id.159SeeNOLAND, ROBINSON& WANG,supranote 137, at 6.160SeeNOLAND,supranote 105, at 9.161See id.at 9-10.162See id.at 10; HAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 14.157158

and Kangwon), and prohibited shipments from other provinces to theseareas.163Residents in these mountainous areas were highly dependent on thePDS, and with the collapse of the industries that had previously employedthem, they had little or no ability to barter or purchase food. It is likely thatthe famine started in these mountainous Eastern provinces at that time, a yearbefore it spread to the rest of the country.164By 1997, the government had cutPDS rations to a paltry 128 grams a day, and the PDS system may have beenfeeding less than 10 percent of the population.165Farmers themselves, though capable to a limited extent of coping with thecrises, were not immune from the government’s measures to tighten andcontrol food supplies. The government reduced the annual allotment thatfarmers could legally hold back, from 167 to 107 kilograms per person. Inaddition, the government began seizing grain stores. Predictably, farmersresponded by hiding and hoarding grain and cultivating hidden plots, therebyfurther diverting production from the PDS.166Apart from the reduction in PDS rations, the government’s other responseswere often crude, cruel, and ineffective. For example, the North Koreangovernment encouraged the use of “alternative foods,” such as small brickswhose only ingredients were bark, leaves, and grass. This product had nonutritional value, and it caused dysentery, diarrhea, and internal bleeding – allpotentially fatal conditions.167Furthermore, for a period of time, the North Korean government “continuedto criminalize many of the very coping strategies for the famine it had forcedon its own population.”168For example, the right to free movement was heavilycurtailed and regulated. This inhibited and at times prevented people fromsearching for food alone and from relocating to areas experiencing less acutefood shortages.169Additionally, the private production and trading of foodremained illegal. The government subsequently relaxed some of these policiesto a minor extent – or at least tolerated their breach – but not soon enough toprevent the tragedy that Pyongyang’s policies had now inflicted on its own people.e. The Famine’s ImpactAssessing the impact of the famine and food shortages is made difficult bythe lack of information from the reclusive North Korean government and bythe lack of independent and first-hand information available to researchers,scholars, and other independent observers.SeeNATSIOS,supranote 106, at 5.See id.165SeeNOLAND,supranote 105, at 10.166SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 18.167See North Korean Famine In Detail, supranote 109.168HAGGARD& NOLAND, HUNGERANDHUMANRIGHTS,supranote 70, at 20.169See id.163164

Mortality rates are just one measure of the tragedy, and they vary widely inthis case. But by any estimate, the rates are grim and shocking. At the lowend are estimates by Pyongyang itself. The government has acknowledgedthat 220,000 North Koreans died of starvation between 1995 and 1998, theheight of the catastrophe.170At the other end of the spectrum, Hwang JongYup, the highest-ranking defector from North Korea, has stated that NorthKorean agricultural officials estimated internally to the government itself that2.5 million people perished between 1995 and 1997, including 500,000 in1995, one million in 1996, and another one million in 1997.171AndrewNatsios’s review of several independent studies concludes that there is significantevidence to support Hwang Jong Yup’s estimates.172There have been plausible,fact-based estimates as high as 3.5 million deaths, although these estimates areregarded with skepticism by several scholars.173Between the extremes, there is a general consensus that in those years asmany as one million people, and possible many more, lost their lives to famineand famine-related diseases, representing three to five percent of the population.174Thus, one need not accept the highest mortality estimates and yet still conclude,based on conservative estimates, that the famine was a terrible human tragedy.The mortality rate is even more shocking in an industrial society with theresources and options that would be available to the government if it werewilling to pursue different policies and priorities.Fatalities, however, are only one statistical measure of the tragedy. Thehuman misery in North Korea during the famine had many terrible dimensions.Death from starvation does not happen overnight, or even over a period ofweeks. It happens only after months of malnutrition, pain, disease, andsuffering. Even survivors endured severe hunger, malnutrition, gastrointestinalproblems, and disease – not to mention mental illness and despair that canresult from the anxiety of fighting starvation.Apart from famine-related diseases, it is likely that thousands of othersperished from conditions they might have survived if their bodies had notbeen ravaged by starvation. For example, many city dwellers may have diedwhen they fled the cities – in some cases voluntarily, in others involuntarily –traveling on foot and exposed to the elements, including the harsh NorthKorean winter. Even when the famine subsided into the permanent food crisisthat still plagues North Koreans today, the population is still so weakened bymalnutrition that minor diseases, such as influenza, can be deadly to many.SeeA MATTER OFSURVIVAL,supranote 108, at 9.SeeNATSIOS,supranote 106, at 6-8.172See id.173SeeDaniel Goodkind & Lorraine West,The North Korean Famine and Its Demographic Impact,POPULATION& DEV. REV. (Vol. 27, No. 2), at 219-38; HAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 18; NOLAND,supranote 105, at 12-13.174SeeNOLAND,supranote 105, at 11-13.170171

Nor were the effects of the famine temporary and limited to the 1995 to1998 timeframe. For example, a study of 1,800 children by researchers fromthe WFP, UN Children’s Fund (UNICEF), and European Union (EU) afterthe famine found that, because of long-term food shortages, a staggering 62percent of children under 7 suffered from stunted growth.175Illustrating thisphenomenon, published accounts by aid workers and foreign residents ofPyongyang in 1998 said children who were 7 years old looked 3 to 4 yearsold. The same WFP survey found that 30 percent of toddlers suffered frommoderate to severe malnutrition.176Because of the critical nature of these agesfor normal human development, the malnutrition in many children is likely tolead to permanent, lifelong mental impairment.177f. International Aid: Hindrances, Diversion, and MisuseToday, a well-developed system of international institutions exists thatregularly mobilizes to respond to food crises throughout the world – includingthe UN’s World Food Programme. Once alerted, these institutions have aproven record of effective intervention.Nevertheless, the North Korean government failed to take timely and fulladvantage of available international aid. The North Korean economycollapsed before 1990. Food production plummeted, but the government didnot act. Rather than seeking to expand commercial imports or requestemergency assistance, it chose to do nothing.178As the crisis deepened and information about the ongoing catastropheleaked out, North Korea ultimately requested emergency aid from Japan andeventually South Korea. These countries began responding in June 1995.179Later, the United States and EU nations also contributed massive amounts ofassistance, in the form of both food and agricultural aid. Additional aid alsocame from NGOs such as the Red Cross, and through the WFP.Until 1994, China had been shipping North Korea 700,000 to 800,000metric tons (MT) of rice a year180, but when North Korea proved unable – orunwilling – to pay for the shipments, they largely stopped. In 1996, however,China responded to the crisis with a shipment of 100,000 MT. Apart fromhumanitarian reasons, China became concerned about the flow of refugeesover its borders searching for food and attempting to escape the famineSeeElisabeth Rosenthal,In North Korean Hunger, Legacy Is Stunted Children,NEWYORKTIMES,Dec. 10, 1998.176See id.177See id.178SeeSTEPHANHAGGARD& MARCUSNOLAND,Hungry for Human Rights,WASHINGTONPOST,Sept. 28, 2005.179SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 14-15.180The size of the Chinese shipments is further evidence of the scale of the food deficit that NorthKorea faced before the onset of the food crises and then famine.175

Despite this massive aid, as many as one million people, and perhaps manymore, died. Natsios found three explanations for this outcome. First, thegovernment responded slowly to the crisis and aid was delivered at times thatdid not match the famine’s peak. Second, the government shut down thePDS after a poor harvest in 1996. Third, the government actively preventedaid from reaching the four “triaged” provinces in the North, among the mostdependent on the PDS and food imports, thereby condemning residents thereto the worst circumstances.183When aid did arrive, North Korea interfered with attempts to distributefood assistance that were nondiscriminatory and transparent. The governmentignored commonly accepted norms for distribution of aid, which are designedto ensure that the aid reaches those who need it most.184Instead, the governmentpursued several policies designed to control aid distribution, hinder effectivemonitoring, and create opportunities for manipulating and diverting aid forthe government’s purposes:• The government severely limited the number of WFP and NGO workersallowed into the country to deliver the aid, hampering the ability of workersto assess the extent of the famine, what help was needed, and where.185• The government prohibited the WFP and NGOs from using Koreanspeakers and required the use of government interpreters, furtherobstructing independent information collection and assessments.186

• The government refused to allow international organizations, such as theWFP and NGOs, to set up independent, transparent distribution networksthat could ensure the nondiscriminatory distribution of food to all partsof the country and to all members of society on a fair basis according toneed. Instead, foreign aid organizations were required to use the PDSnetwork controlled by government and party officials, subjecting the aidto pressures to reallocate and redistribute it and to corruption and theft.The opportunities for “leakage” and diversion were significant.187• In addition to hindering the fair distribution of aid, the governmentrefused to allow aid to reach many counties, for reasons that are not yetunderstood. Even today, aid workers are prohibited from visiting 42 of203 counties in the country. WFP has been unwilling to provide foodaid to those counties without the transparency and monitoring ofdistribution that it demands of all food aid recipients.188• The government restricted the movements of aid workers and required189the use of government “handlers” or escorts.Due to the lack of transparency and effective monitoring, there werewidespread reports that significant amounts of foreign aid were not reachingthe most deserving recipients. Instead, aid was diverted to the same privilegedpersons the party favored under the PDS, including the military, partyofficials, and party loyalists.190One South Korean NGO estimated that asmuch as 50 percent of foreign aid was diverted to non-deserving groups,including the military.191

See id.See id.189See id.190Haggard and Noland have questioned whether outright, direct diversion to privileged persons,including the military, occurred on a large scale. They argue that the military and other privilegedpersons had the means to purchase and acquire food on their own, and presumably they were giventhe first portions of the aid from China and South Korea, which was given with no monitoring orcommitment that the aid be distributed on the basis of need rather than class. Instead, Haggard andNoland have suggested that the diversion that occurred was of WFP and NGO aid into illegalmarkets, where those diverting the aid could sell it at a profit themselves. Of course, those withsufficient money to make such purchases were not the most needy or vulnerable.See id.at 24.191See North Korea Today(Good Friends Center for Peace, Human Rights, and Refugees, Jan. 2005).187188

More disturbingly, Pyongyang took advantage of the foreign aid to divertgovernment revenue away from food assistance and used the savings to fundthe government’s other priorities, such as military weapons programs.192As aidbegan arriving during the famine, North Korea reduced its food imports in amanner disproportionate to the decline in other imports; once the economywas stabilized and began to recover, overall imports began to increase, butPyongyang kept food imports at their lower levels.193As one illustration, as it was cutting its purchases of food imports in 1999,the North Korean government bought 40 Mig-21 fighters and eight militaryhelicopters from Kazakhstan.194Further, the government continued to pursueits expensive nuclear programs during the famine, using resources that shouldhave been used to feed its people. Simply put, even at the height of thefamine, the government demonstrated that it prioritizes its military over thebasic survival needs of its population.g. The Continuing Food CrisisWhile the acute famine has passed, North Korea remains locked in aperpetual food crisis – one the government refuses to cure. According to theWFP and FAO, North Korean harvests have improved in recent years. Butagricultural output has never been sufficient to feed the population, and thecountry suffers annual widespread food shortages.195For 2006, the WFP andFAO estimated that North Korea will need 5.3 million tons of grain to feed itspeople, while other experts have estimated that as much as 6.5 million tons ofgrain is required. North Korea, however, is only expected to produce about3.825 million tons, leaving a deficit of between 1.475 and 2.675 million tons.196It is important to note that these estimates were made before the July 2006flooding that severely damaged arable land and harvests, further aggravatingan already fragile state of affairs.197Malnutrition rates remain high, particularly among children. The mostrecent large-scale survey, conducted in 2004 by the WFP and UNICEF, foundthat 37 percent of children under 6 (i.e., born after the height of the famine)

were stunted, 12 percent were severely stunted, 23 percent underweight, 8.1percent severely underweight, 7 percent were wasted, and nearly 2 percentseverely wasted. The same survey found that one-third of mothers with youngchildren were malnourished and 35 percent were anemic, foreshadowingadditional problems with future children.198According to UNICEF, suchmalnourished children are much more likely to die as a result of commonchildhood diseases. Additionally, malnourished children are more likely tohave permanent disabilities, weakened immune systems, and impaired learningabilities.199According to Amnesty International, over 60 percent of NorthKorean children under 5 suffer from acute respiratory diseases and over 20percent from diarrhea.200Despite these systemic problems in the years since the famine subsided, thegovernment has not attempted to overhaul its economy in a way that wouldsuccessfully end 50 years of food insecurity and annual food shortages. Infact, the actions that have been taken by the North Korean government haveonly made the food crisis worse. Driven by necessity, North Koreans began toprivately grow, trade, and barter for food, and small markets for these activitiesdeveloped.201In the beginning, the government tolerated these copingmechanisms by legalizing some of these activities.202As a result, private marketshave been the primary mechanism for distributing food in North Korea inrecent years, while the PDS has been used primarily to distribute (and control)outside aid.203These imperfect coping mechanisms, however, have been short lived. InAugust 2005, North Korea informed the United Nations that beginning in2006, it would no longer accept WFP “humanitarian assistance,” but would

instead accept “development cooperation.”204A short while later, the governmentinstructed officials to reinstitute the PDS. At the same time, the governmentalso once again banned private trading in grain. These steps alone make itvery difficult for individuals to obtain food outside of government distribution.205Compounding these self-imposed challenges, North Korea rejected aidfrom the EU in November 2005 after the EU proposed a UN resolution onhuman rights in North Korea.206Objecting to WFP monitoring requirements– specifically, the ten expatriate staff in Pyongyang conducting monitoringtrips207– North Korea shut down WFP operations completely in December2005. Ultimately, the WFP renegotiated its program under tight NorthKorean restrictions and, as of January 2006, the new scaled-down operationswere estimated to be feeding fewer than half of the targeted 6.4 million NorthKoreans.208Human Rights Watch and other observers have warned that these measuresare “a recipe for disaster.”209Recent news reports suggest that six months afterthe authorities announced they were fully reinstating the PDS, North Koreansin many parts of the country were not receiving rations, and that others werereceiving rations that are insufficient to maintain basic health.210h. SummaryNorth Korea cannot feed itself, and it is unrealistic for the country toremain dependent on infusions of outside aid. North Korea must implementeconomic changes to make it possible for the country to generate food security.At a minimum, the North Korean economy needs to build – and in somecases rebuild – sufficient industrial and manufacturing capacity to generateSeeMark E. Manyin,U.S. Assistance to North Korea: Fact Sheet(Congressional Research Service,2006), at 3. The distinction between humanitarian and development assistance is important.Under U.S. law, “development” or “non-emergency” food aid is subject to some conditions thatcould be used by the executive branch or Congress as a justification for reducing or cutting offdonations.See id.The Foreign Operations Appropriations Act § 536b (FOA Act) waivesrestrictions for non-emergency food assistance imposed under U.S. law. The FOA Act, however,contains two exceptions that will not be waived: (a) statutes that prohibit aid to “countries” on theU.S. list of state sponsors of terrorism; and (b) statues that prohibit aid to a “government” that“violates internationally recognized norms of human rights.” These prohibitions are contained inthe Foreign Assistance Act of 1961, §§ 620A and 116, respectively. Both apply to North Korea.Moreover, since 2002, over 90 percent of the food aid to North Korea has been provided underTitle II of the Agricultural Trade Development and Assistance Act of 1954, as amended (P.L. 83-480, also known as P.L. 480). Congress directly appropriates P.L. 480 and therefore could,although it rarely does, direct how the food should or should not be disbursed.See id.Assistancedeemed to be “humanitarian,” however, generally is exempt from sanctions.See id.205SeeA MATTER OFSURVIVAL,supranote 108, at 19-23.206SeeManyin,supranote 204.207See id.at 4. At its peak, WFP had 50 expatriate staff in five regional offices in North Korea.208See id.209North Korea: Policy Changes May Foster New Hunger(Human Rights Watch, May 4, 2006).210SeeA MATTER OFSURVIVAL,supranote 108, at 3.204

exports that, in turn, would generate the currency to pay for food imports andfor the agricultural inputs necessary for North Korea’s own agriculturalproduction.211This could be accomplished through reform models, like the“Chinese model,” a market economy, or other approaches.212Furthermore,North Korea must reduce its investments in the military and WMD programsand use that revenue to create an economy capable of sustaining and protectingits citizens.In sum, the hunger and suffering of the North Korean people during thefamine of the 1990s remains widespread today because of the government’sunwillingness to address the following fundamental causes of the country’schronic food insecurity:• Fifty years of failed governmental policies, an insistence on the ideologyofjuche,and a disproportionate use of resources for the military haveresulted in repeated food shortages and a fragile, inefficient agriculturalsystem that has left the North Korean people vulnerable to famine.• Those same failed policies made North Korea overly dependent onoutside aid both for the tools required for agriculture – fertilizers andfuels – and for food itself.• When outside aid collapsed, North Korea failed to react with appropriateeconomic changes, additional commercial food imports, and timelyrequests for emergency assistance.• When North Korea finally requested aid, (i) it prevented that aid fromreaching significant areas of the country, including the most vulnerable;(ii) it hindered efforts to ensure that aid reached those who needed itmost; (iii) it diverted significant aid to the military, party loyalists, andother privileged persons; and (iv) it used aid to reduce commercialimports of food and divert revenue to other priorities, such as WMDprograms.• The food crisis continues, and North Korea likely stands on the brink ofanother famine. Nevertheless, the government refuses to reform its policiesto bring food security to its people. Instead, it relies on significant outsidefood aid, allowing the government to continue devoting disproportionateresources to the military and its WMD programs.SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 34; NOLAND,supranote 105, at 26-27.212SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 34.211

2. Treatment of Political PrisonersPolitical dissent in North Korea is not tolerated. Real and alleged politicaloffenses are investigated and punished by the State Security Department – anautonomous agency entrusted with carrying out counterintelligence and internalsecurity functions through its secret police force.213The department’s mandateincludes locating and punishing those accused of slandering the politicalleadership and those engaged in other antigovernment and dissident activities.214Those accused of political offenses are neither arrested nor informed of theoffense they are accused of committing by the State Security Department.Instead, the accused is abducted, placed in an interrogation facility, andsometimes tortured until he or she “confesses” to the crime.215Once deemedguilty of a political crime, the criminal is punished in one of two ways – he orshe is either executed or incarcerated in a political prison camp, calledkwan-li-so.216An estimated 200,000 people are now imprisoned in North Korea’s variousprison camps.217It is believed that more than 400,000 prisoners have died inthese camps over the past 30 years.218This section presents information about:(a) the legal context for North Korea’s obligations in its treatment of politicalprisoners; (b) the execution of political prisoners; and (c) abuse and maltreatmentin thekwan-li-so.a. Legal Context: Rights of Political PrisonersAs described previously, North Korea is a state party to the ICCPR.219As astate party, North Korea “undertakes to respect and ensure all individuals . . .the rights recognized in the present Covenant” and “to take the necessary steps. . . to adopt such laws or other measures as may be necessary to give effect to[these] rights.”220See North Korea: The Public Security Apparatus(Library of Congress, Jun. 1993).See id.215SeeDAVIDHAWK, THEHIDDENGULAG: EXPOSINGNORTHKOREA’SPRISONCAMPS(U.S.Committee for Human Rights in North Korea, 2003), at 24.216See id.217See id.at 24, fn. 16.218SeeCHOISUNG-CHOL, THEINTERNATIONALCOMMUNITY ANDHUMANRIGHTS INNORTHKOREA(Center for the Advancement of North Korean Human Rights, 1996), at 11. Thisestimate covers the period of 1972-1995.219SeeINTERNATIONALCOVENANT ONCIVIL ANDPOLITICALRIGHTS, G.A. Res. 2200A (XXI), 21UN GAOR Supp. (No. 16), at 52, UN Doc. A/6316 (1966), 999 U.N.T.S. 171,entered into force23 March 1976;see also supranote 99.220Id.at Art. 2(1)-(2).213214

Specifically, as documented below and in David Hawk’s landmark reportThe Hidden Gulag221,there are systematic and widespread violations of thefollowing provisions of the ICCPR:• Article 6 (right to life);• Article 7 (right not to be subjected to torture or to cruel, inhuman, ordegrading treatment);• Article 8 (right not to be held in slavery or servitude);• Article 9 (right not to be held in arbitrary detention);• Article 10 (right for all persons deprived of liberty to be treated withhumanity);• Article 12 (right to free movement);• Article 14 (right to due process and elements thereof including right tofair and public hearing by independent and impartial tribunal, right tocounsel, right to presumption of innocence, right to appeal conviction);• Article 16 (right to recognition as a person)• Article 17 (right not to be subjected to arbitrary interference withprivacy, family, home, or correspondence);• Article 18 (right to freedom of thought, conscience, and religion);• Article 19 (right to hold opinions without interference);• Article 21 (right to peaceful assembly);• Article 22 (right to freedom of association); and• Article 26 (right to equal protection and non-discrimination, includingon grounds of political or other opinion, birth, or other status).222North Korea revised its criminal code most recently in 2004. The revisedcode stiffens penalties for anti-state crimes but reduces penalties for thoseleaving the country for non-political reasons (e.g., economic migrants).223

b. The Execution of Political PrisonersNorth Korean citizens have been executed for a broad array of politicalcrimes, including crimes that would not ordinarily be considered “political.”224For example, individuals caught fleeing North Korea have been executed forengaging in “treason against the fatherland.” Members of an organized crimesyndicate were executed because they shouted the name of their boss. This actwas seen as showing respect for their boss, which was deemed to be a politicalcrime. Being in possession of information regarding South Korea is also anact punishable by execution. One individual was executed for being inpossession of a gun and a South Korean leaflet. Similarly, a sergeant in thearmy was executed for fleeing his barracks after reading a South Korean leaflet.225Executions are generally conducted in public places to serve as examples toother North Korean citizens. The execution procedure begins with the beatingof the prisoner to ensure that resistance to the sentence will be minimal.226Once at the execution site, the accused’s personal background is read to thecrowd and the crime is described. At that point, a “judge” from the People’sCourt sentences the “criminal” to death and the execution takes placeimmediately, although sometimes the accused is removed and executedelsewhere.227North Korean law states that a prosecutor must be present ateach execution; however, compliance with this requirement is rare. Similarly,while North Korean law requires the death sentence to be carried out by firingsquad, some executions are done by hanging. A prisoner’s family membersoften are present at the execution.228Public executions have been carried out at such locations as schools orfarms in the presence of large crowds assembled by advance public notice. Asinformation about these executions began to be reported outside of NorthKorea, however, the executions have been taking place without advance notice,in marketplaces and other crowded locations, to reduce the chances that theexecution will be filmed or videotaped and the evidence then smuggled abroad.229Public executions have been reported as recently as September 20, 2006.230

North Korea revised its penal code in 2004 and reduced the number of crimes punishable bythe death penalty from 33 to five. According to the revised penal code, the five acts punishableby death are conspiracy to overturn the state, treason against the fatherland, terrorism, treasonagainst the people and premeditated murder.See White Paper on Human Rights, supranote 103,at 25.225Similarly, seemingly simple economic crimes are also punishable by execution. For example, in1997, a proclamation was issued stating that anyone caught stealing grain from agriculturalcooperatives would be punished by execution.See id.at 29-31.226See id.at 33.227See id.at 34.228See id.229See id.230See Exclusive: Scene of a Public Execution,DAILYNK, Sept. 20, 2006.224

A 1997 Amnesty International media advisory stated that the organizationhad received reports of at least 23 public executions in North Korea occurringbetween 1970 and 1992, but it has noted that public executions may be morewidespread.231North Korea itself reported that in 1998 there were six deathsentences and five executions, in 1999 there were four death sentences andfour executions, and in 2000 there were five death sentences and fourexecutions.232Political prisoners who are not executed are ordinarily sent awayfor life or for lengthy sentences in the political prison camps.c. Life in the GulagNorth Korea has been operating prison camps since 1947.233The firstprisoners included landowners, religious persons, and those who supported theJapanese in its occupation of Korea.234In the 1950s, Kim Il Sung’s politicalopponents became the majority of the inmates of the prison camps.235Kim IlSung decreed that these people were so dangerously deluded in their politicalbeliefs that they, along with their families, should be sent to live in ruralmountain areas where they could not “contaminate” the rest of the NorthKorean population. Additional camps were created to house Kim Il Sung’smany real or imagined political enemies and their families during the frequentpurges that characterized the late 1960s.236At the height of the regime’s oppression, even statements that did not criticizethe regime constituted ideological crimes. For example, expressing exasperationwith the difficulty of life generally, even without attributing that difficulty toKim Jong Il or the regime, was a “verbal reactionary” crime punishable withkwan-li-soimprisonment237Similarly, simply singing a South Korean songconstituted an act that warranted a prison term.238Once Kim Jong Il replaced his father, more political prison camps wereneeded to house the new leader’s detractors.239By 1982, the government hadsentenced over 100,000 political undesirables to permanent hard labor inNorth Korea’s expanding prison-camp network. The situation worsened whenKim Jong Il began to fear that the Communist collapse and political reformthat characterized Eastern Europe in the late 1980s would spread andchallenge his rule.

The number of political prisons orkwan-li-sohas changed over time. Atone point, there were believed to be 12kwan-li-soin existence. Currently, it isbelieved that several of the camps close to the Chinese border have been closedand that there are now 6kwan-li-so.240The remaining camps are believed tobe No. 14 at Kaechon, South Pyongan Province; No. 15 at Yodok, SouthHamgyong Province; No. 16 at Hwasong, North Hamgyong Province; No. 18at Bukchang, South Pyongan Province No. 22 at Hoeryong, NorthHamgyong Province; and No. 25 at Chongjin, North Hamgyong Province.241Although each camp is somewhat unique, they do share some commonfeatures. They generally are developed in valleys between high mountains tomake escape more difficult. Because the camps contain large numbers ofprisoners – from 5,000 to 50,000 people – they are divided into separate sectionsor “village” compounds. Because of North Korea’s “guilt by association” system,families of the presumed offender are also incarcerated.A US House International Relations Committee Report notes that the“terrible human rights situation inside North Korea . . . has remained largelyhidden from the outside world until the past several years.”242While anecdotalevidence about North Korea’s prison camps has recently begun to filter out ofNorth Korea, most of that information remains unverifiable. Human rightsorganizations such as Amnesty International and Human Rights Watchcontinue to report on the North Korean situation but acknowledge theirinability to verify much of the information they relay.243The nationwidefamine in the mid-1990s, however, caused an unprecedented number ofNorth Koreans to defect. These defectors allowed the international communityto hear of the government’s human rights abuses from witnesses. Throughthis ever expanding group of sources, much more is known today than everbefore about the conditions in North Korea’s prison camp system.The remainder of this section details the conditions in thekwan-li-soincluding (1) incarceration of families of political prisoners; (2) starvation ofprisoners; (3) death by labor; (4) use of torture to interrogate and punish;(5) executions of political prisoners; and (6) forced abortions and infanticides.(1) The Incarceration of the Families of Political PrisonersIn addition to taking the accused individual, the State Security Departmentalso will incarcerate up to three generations of the accused’s family, includingmother, father, sisters, brothers, children, and grandchildren. This practice isSee id.at 26.See White Paper on Human Rights, supranote 103, at 233; HAWK,supranote 215, at 19(satellite images of these camps can be found at 89-117).242The Status of North Korean Asylum Seekers and the U.S. Government Policy Towards Them(U.S.Department of State, Mar. 11, 2005),quotingReport No. 108-478.243See Democratic People’s Republic of Korea (North Korea): Conditions of Detention(AmnestyInternational, Jun. 1999).240241

believed to have begun with Kim Il Sung’s 1972 proclamation “[f ]actionalistsor enemies of class, whoever they are, their seed must be eliminated throughthree generations.” Like the accused political prisoner, the family members arenot granted a trial – they are picked up and transported to akwan-li-sowithout being provided with any information as to when, if ever, they will bereleased.244One defector, Kang Chol-Hwan, who chronicles his ten years inkwan-li-soNo. 15 (also know as Yodok) in his memoirThe Aquariums of Pyongyang: TenYears in the North Korean Gulag245, reported that his grandfather disappearedone day without any explanation or warning. When Kang’s grandmotherasked her husband’s coworkers where he was, they first informed her that hehad gone on an urgent business trip. The police told her that they did notknow anything about his whereabouts. Weeks later, agents came to Kang’sfather’s home and informed the family that Kang’s grandfather had committeda “crime of high treason.”246Because of this unspecified crime, Kang’s father,grandmother, uncle, and sister were all immediately taken into custodywithout being informed where they were going. The family was drivendirectly to Yodok. On arriving, the family was not told how long they wouldbe imprisoned.Years later, through a prisoner who had been transferred from anotherprison camp, the family learned that Kang’s grandfather had been arrested andplaced in a different prison camp. The family never saw Kang’s grandfatheragain. After ten years of imprisonment under extremely harsh conditions,Kang’s family was released unexpectedly from Yodok with no explanation.Kang suspects that the family’s release was due to his grandfather’s death.Kang’s mother’s fate also demonstrates the total control the North Koreangovernment wields over its citizens. Kang’s mother was not arrested becauseher father had been an undercover agent for the Pyongyang regime in Japanand died in Japanese custody. Because of this, the family was considered a“heroic family.” She was not sent to Yodok with her husband and children,but she was forced to divorce Kang’s father and sever all ties to the family of“traitors” that had been placed in the prison camp.247(2) Starvation of PrisonersOnce in the camps, political prisoners and their families face numerousimpediments to their survival. The first such impediment is that prisoners areprovided only “starvation-level” food rations, even though they are forced to

engage in long and physically demanding labor.248This combination oftenturns the labor camps into death camps. A former guard who defected fromNorth Korea expressed his shock at seeing the prisoners for the first time – hesaid the prisoners looked like “walking skeletons, dwarfs and cripples in rags.”249The insufficient food rations cannot be attributed to a lack of food,because the below-subsistence rations predated North Korea’s famine of the1990s. Instead, starving the prisoners helps control them. For example,prisoners are given strict and often unrealistic work quotas each day.250Failureto meet one’s quota results in reduced food rations. This threat leads prisonersto work as hard as they can to avoid food reductions. As a result of insufficientfood rations, death and disease caused by malnutrition is common in thecamps. There are numerous stories from defectors documenting terribleconditions facing prisoners in the camps:• Kang Chol-Hwan reported that in his “village” in the prison, there were2,000 to 3,000 people. A number of them died each year from malnu-trition and disease, mainly from severe diarrhea causing dehydration.251• Ahn Myong Chol, a former prison guard reported that atkwan-li-soNo.22, which housed approximately 50,000 prisoners, 1,500 to 2,000prisoners died from malnutrition each year. He stated that most of thedead were children.252• A former prisoner at Yodok, Kim Tae Jin, explained that prisoners weresupposed to be allotted 700 grams (25 ounces) of corn, rice, and beanseach day. The guards, however, would eat the rice and beans, leavingonly 300 grams (11 ounces) of corn per prisoner per day.253To stayalive, prisoners report that they would scrounge for food in any placethey could find something edible.254• Another defector, the only person who claims to have survived the totalcontrol zone ofkwan-li-soNo. 22, describes the starvation rations of 20grains of corn per person that were all that was given workers to sustainthem in 12 hours of labor-intensive work in the mines. To stave off

death, prisoners dug through cow dung in search of undigested grain.One prisoner who was caught doing so was forced to eat maggot-coveredhuman feces in front of the whole camp.255• Defector Lee Young Kuk, imprisoned in Yodok, reported that heweighed 207 pounds upon incarceration and, at his release four yearslater, weighed 128 pounds.256To ensure that the prisoners stay on the verge of starvation, obtainingunauthorized food – even weeds – is punishable by beatings and execution.One former prisoner reports that his mother was beaten by guards until shewas crippled because she had been gathering edible weeds outside of theallotted time given to prisoners to do so.257Another defector reported that aprisoner by the name of Kim Chul Min was executed for the unauthorizedcollection of ripe chestnuts that had fallen to the ground from a tree.258Thatdefector also reported that another starving prisoner named Kal Li Yong diedafter being beaten by guards with a feces-covered stick because he stole aleather whip, soaked it in water, and ate the leather.259(3) Death by LaborAll prisoners, including children, are required to engage in very demandingand dangerous labor at the variouskwan-li-so.The work given to prisonersincludes mining, timber-cutting, farming, and sewing. Prison labor conditionsin some camps result in 20 to 25 percent of the labor force (i.e., politicalprisoners) being worked to deatheach year.260A former guard reported that atkwan-li-soNo. 22, there were so many deaths from beatings of prisoners whohad not met their labor production quotas that guards were instructed to beless violent.261Kang Chol-Hwan reported that mining jobs were considered the worst inthe camp because of the high death rate. Prisoners worked in the mines from6 AM until noon and from 1 PM until 7 or 8 PM. These workers were givenno protective gear – not even a hard hat – and cave-ins were common.262Forexample, while on assignment at a clay quarry, Kang witnessed a group ofchildren who had been ordered to excavate a ton of earth in a single afternoon –

an impossible task. They burrowed child-sized tunnels into the foot of a cliffwith no adult supervision nor any scaffolding. Inevitably, a cave-in occurredand several children were trapped. The other children worked furiously to freethe buried children while camp guards sat by watching. The guards eventuallyordered the surviving children to keep working – forcing them back to workbefore the dead children’s bodies had even been removed from the site.263If prisoners are able to avoid death, they still risk being disabled or losing alimb.264Frostbite from working in freezing conditions with little protectionfrom the elements causes amputations to be commonplace.265Prisoners werenot given clothes that could be called anything other than rags and were onlygiven new shoes every two years. Because the shoes were not of good qualityand the work was so demanding, the shoes never lasted more than one year.As Kang explained, when he was 12, his job was chopping down trees,then carrying them down steep mountains. Only if the temperature droppedbelow minus 13� Fahrenheit (minus 25� Celsius) would the children beexcused from working outside.266As Kang described it: “imagine us kids,dressed all in rags, trying to chop down a tree . . . with our bodies waist deepin snow, we had to dig evacuation paths in case a tree didn’t fall as planned.”267In addition to the frostbite threat, the falling trees also killed and maimedmany prisoners.(4) Use of Torture to Interrogate and PunishWitness testimony has also revealed the systematic use of torture as ameans of interrogation and punishment. When arrested, political prisonersare first tortured in an effort to get them to “confess.”268Once placed in acamp, prisoners are further tortured as a means of punishment. A formerNorth Korean intelligence agent, Kwon Hyok, confirmed that torture tookplace routinely: “[p]risoners were like pigs or dogs. You could kill themwithout caring whether they lived or died . . . .”269Ali Lamada, recruited from Venezuela as a translator, was arrested inSeptember 1967 and was tortured until he “confessed” to being a spy. He wasplaced in solitary confinement in the Ministry of the Interior in a 2 meter by1 meter by 3 meter (7 feet by 3 feet by 10 feet) enclosure for a year on below-subsistence-level food rations. During this time, he lost 22 kilos (more than

50 pounds) and his body became covered with sores. Subsequently he wasmoved to a prison camp, where “he was thrown into a punishment cell . . .where, kept handcuffed for three weeks, he slept on the floor without blanketor mattress in freezing temperatures. Transferred to the main prison-campbuildings, he was locked in unheated rooms and suffered frostbite of the feet.His toenails dropped off and his feet became covered with sores.”270Other former prisoners report that prison guards would engage in beatingsso vicious that a prisoner’s eye might fall out or leg bone be exposed.271Another common type of punishment was forcing the prisoner to sit downand stand up repeatedly until he or she could not stand.272Conversely, prisonerswere often punished by being forced to squat motionless for hours at a timeand were beaten if they moved.273As punishment for more serious offenses,prisoners were forced to squat with a metal bar behind their knees until theylost all circulation in their legs and could not move.274A harsher variation of this involved solitary confinement in what Kang hascalled the “sweatbox,” a prison cell so small that a person cannot fully standup or lie down within it. The sweatbox is so small that the prisoner is unableto move and is forced to kneel in a crouch, hands on thighs, sometimes formonths at a time.275The prisoner’s rear end presses into his heels constantlyuntil the buttocks are solid black with bruising. This cuts off circulation sothat, if left in the sweatbox long enough, a prisoner will die.276Moreover,prisoners in the sweatbox are given almost no food and survive only by eatingany bug that crawls through the box. As Kang stated “It is possible to survive[the sweatbox], but the cost is often crippling and the after effects are almostalways permanent.”277Despite the severity of this punishment, it is often usedas a method of discipline for even such minor offenses as failing to respond toa guard’s command with sufficient enthusiasm.278(5) Executions of Political PrisonersNot only are prisoners tortured, but many are executed for what may seemto be trivial reasons. As former prison guard Ahn Myong Chol stated, “publicexecutions within prisons take place routinely.”279Kim Yong, a former prisoneratkwan-li-soNo. 18, said that there were dozens of public executions.280HAWK,supranote 215, at 32.SeeWindrem,supranote 97.272SeeHAWK,supranote 215, at 32.273See id.at 33.274See id.at 36.275SeeKANG& RIGOULOT,supranote 245, at 94-96.276See id.277Id.278See id.at 94.279Kang Chol-Hwan,Public Executions Witnessed Personally,CHOSUNILBO, Mar. 25, 2001.280SeeHAWK,supranote 215, at 38.270271

He said that rule breakers were shot while attempted escapees were hanged.281A former guard atkwan-li-soNo. 22 reported that there were approximately10 executions a year, mostly of people who had been caught eatingunauthorized food.Attempting to escape thekwan-li-soresults in the harshest reprisals.282Toencourage prison guards to vigilantly guard against such escapes, Kim Jong Ilinstituted a perverse incentive system wherein any guard who shot a prisonertrying to escape would be relieved of his guard duties and allowed to attendcollege without paying tuition.283Former guard Ahn alleged that a fellowguard forced a political prisoner to “attempt to escape” by climbing the barbedwire fence surrounding the camp, and then shot him when he did so. Theguard was rewarded, as promised.Others report that not only would the guards execute certain prisoners, butthey would often mutilate the dead body or even require the prisoner witnessesto mutilate the body.284Kang reports that after one hanging, the prisonerwitnesses were required to hurl stones at the dead until the skin on thecorpse’s face began coming off.285Former prisoner Lee Young Kuk stated thathe witnessed the execution of one attempted escapee, who was tied behind acar and dragged to death.286The prisoner witnesses were then required toplace their hands on the bloody body of the dead man. At this execution, aprisoner who witnessed the execution “shouted out against this atrocity.”287The witness was shot and killed immediately.288(6) Forced Abortion and Infanticide in Prison CampsThe desperation of starving North Korean women has created a thrivingtrade in trafficking women. Human trafficking across the North Korea-Chinaborder has evolved over the last decade, starting as a fee-based matchmakingservice for Chinese men. The system has degenerated into selling NorthKorean women into the Chinese sex trade or entertainment industry andsemi-voluntary “live-in” arrangements in which destitute, illegal North Koreanwomen live with their Chinese purchasers under often deplorable conditions.289In the event a North Korean “live-in” woman becomes pregnant, herChinese purchaser may decide whether he wants to keep the baby or if he

would prefer that the child be aborted.290The trafficked woman has no say inthis decision. Some of these North Korean women are married with childrenat home in North Korea. If the woman stays in China, arrangements oftenare made to send some of the “purchase” price back to North Korea.291If the Chinese man decides to return the pregnant woman to North Korea,however, her situation becomes far worse. It is reported that pregnant womenreturned to North Korea are forced to abort their pregnancies to prevent thebirth of mixed-race North Korean children. A recent Korean Bar Associationsurvey found that 57.7 percent of the defectors interviewed for the surveyreported seeing or hearing that such pregnant women were forced to haveabortions.292While North Korean law states that pregnant women are not tobe detained three months before and seven months after childbirth, in realitypregnant returnees from China are treated much more harshly than otherreturnees. Rather than receiving suspended sentences, pregnant women –when their babies are not forcibly aborted – are assigned hard labor to causemiscarriages.293Defectors report that if a woman is less than eight months pregnant, thefetus may be aborted through a syringe of salt water to the uterus.294Onerepatriated defector describes an even more brutal form of abortion. KimMyong Suk was 20 years old and five months pregnant when she was returnedto North Korea from her “live-in” arrangement with a Chinese man. Afterforcing Kim’s sister to come to the prison to observe, the North Korean prisonguard attempted to force Kim to abort her own pregnancy. When she refused,he began kicking her in the stomach repeatedly until Kim fell unconsciousand the fetus, referred to by the guard only as “the Chink,” aborted.295If the woman is more than eight months pregnant, the baby is deliveredand then killed or abandoned. Eyewitness accounts from defectors forced toact as midwives to pregnant repatriated North Korean women support this.In one instance, a fellow inmate/midwife was forced to give a pregnantwoman a labor-inducing shot. After delivery, the baby was suffocated in frontof the mother with a wet towel because “no half-Han [Chinese] babies wouldbe tolerated.”296

Other prison midwives describe similar experiences. One detainee deliveredseven babies and was forced to place each in one box and to leave it there.Several malnourished or premature infants died quickly; however, two werehealthy, full-term babies that did not die immediately. Two days later, a guardrealized that the infants had not died, so the guard killed them by driving forcepsthrough the soft spots in their skulls.297Most often, however, infanticideoccurred through suffocation or abandonment. Although witness interviewscollected in preparingThe Hidden Gulagdocument 52 such cases, verifiableevidence has proven elusive.2983. Abduction of ForeignersThe North Korean government has a long history of abducting foreignnationals, bringing them to North Korea, and keeping them there againsttheir will. Although this report does not classify these acts as constitutingcrimes against humanity, they are nevertheless a unique and disturbing set ofhuman rights violations.During the Korean War, North Korea reportedly abducted 84,532 SouthKoreans and forcibly took them to North Korea; 7,034 South Koreans werelater officially registered as “abducted” in a 1956 survey conducted by KoreanNational Red Cross.299Between 1955 and 1987, North Korea abducted asmany as 3,790 South Koreans, most of whom were fishermen; 480 of theseabductees have never returned.300And although the Japanese government onlyrecognizes the cases of 16 abductees301, there may have been as many as 70 to80 Japanese abducted to North Korea.302There also are reports of abductionsfrom Austria, Lebanon, Germany, Malaysia, Philippines, Singapore, Thailand,and Norway.303This section presents information about: (a) the legal context for NorthKorea’s obligations in relation to abductions; (b) Korean War abductions; and(c) post-Korean War abductions.

See id.at 62-63.See id.at 72.299See White Paper on Separated Families,Korean National Red Cross, 1976.300These statistics were obtained from Choi Woo-Young, President of the Families of theAbducted and Detained in North Korea, who has extensively documented the statistics and indi-vidual stories of abductees;see alsoSUECHANG, LOSTINPURGATORY: THESTORY OFSOUTHKOREANABDUCTEES(2005),available athttp://journalism.berkeley.edu/projects/north_korea/2005/10/lost_in_purgatory_the_story_of.html.301See Japan: Abduction Row Key to North Korea Ties,REUTERS, Feb. 7, 2006.302See N. Korean Defector Says 70-80 Japanese Abducted by North,KYODO, Nov. 25, 2002.303See, e.g., Condemning the Democratic People’s Republic of Korea for Abductions,H.CON.RES. 168,RESOLUTIONINTRODUCED IN THEU.S. SENATE, Jul. 12, 2005 (describing details of numerousNorth Korean abductions); Hideko Takayama & Evan Thomas,Lost, Without a Trace,NEWSWEEK,Feb. 20, 2006.297298

a. Legal Context: AbductionsAs described previously, North Korea is a party to the InternationalCovenant on Civil and Political Rights, to which North Korea acceded onSeptember 14, 1981.304Abducting people or continuing their detention afterthe date North Korea acceded to the ICCPR violates numerous treatyprovisions including:• Article 7 (right not to be subjected to torture or to cruel, inhuman, ordegrading treatment);• Article 8 (right not to be held in slavery or servitude);• Article 9 (right not to be held in arbitrary detention);• Article 10 (right for all persons deprived of liberty to be treated withhumanity);• Article 12 (right to free movement); and• Article 17 (right not to be subjected to arbitrary interference withprivacy, family, home, or correspondence).305Particularly relevant for abductees is Article 12(2), which states that“[e]veryone shall be free to leave any country, including his own.” Therefore,even if individuals were abducted prior to the date of North Korea’s accessionto the ICCPR, if they were not allowed to leave North Korea, it would be aclear violation of the treaty.The UN General Assembly has expressed concern for abductees and other“disappeared” persons. As early as 1978, the General Assembly said it was“deeply moved by the anguish and sorrow which such circumstances cause tothe relatives of the disappeared person.”306It went on to make a series ofrecommendations on the topic to the international community.307Subsequently, in 1992, the General Assembly adopted theDeclaration onthe Protection of All Persons from Enforced Disappearance.308In the preamble ofthe Declaration, the General Assembly expressed its concern that “often in a

persistent manner, enforced disappearances occur, in the sense that persons are. . . abducted against their will . . . by officials of different branches or levels ofGovernment.”309It then codified a series of 21 different articles relating to thetopic. Article 1 of the Declaration states, “any act of enforced disappearance isan offence to humanity dignity” and Article 2 says, “no state shall practice,permit, or tolerate enforced disappearances.”310While General Assemblyresolutions are not binding international law on states, they are clear evidenceof the will of the international community.Therefore, North Korea has a treaty obligation under the ICCPR to refrainfrom abducting individuals and to allow anyone who has been abducted toreturn to their homes, wherever they may be. By refusing to do so, NorthKorea is also violating the general will of the international community.b. Korean War AbductionsAlthough the precise number of abductees is not known, some reportsindicate that during the Korean War, North Korea abducted 84,532 SouthKoreans and forcibly took them to North Korea; 7,034 South Koreans civilianabductees were later officially registered as “abducted” in a 1956 surveyconducted by Korean National Red Cross.311In addition to civilian abductees,there has also been an ongoing dispute about South Korean prisoners ofwar (POWs).312Facing a post-war labor shortage, North Korea refused to release thousandsof South Korean POWs and forced them to work in North Korean coalmines.313Between 1995 and 2005, 38 POWs escaped from North Korea.These escapes garnered little media coverage, in part because the escapeessought to avoid publicity out of fear for their wives and children left behind

Id.Id.at Art. 1-2.311See White Paper on Separated Families, supranote 299. According to the United Statesgovernment, as of December 19, 1951, it was generally recognized that 20,000 South Koreancivilians had been taken to North Korea against their will.See Foreign Relations of the UnitedStates(Volume VII – Korea and China, 1951).312In early December 1951, UN forces in Korea estimated that approximately 88,000 SouthKorean troops were missing in action; however, on December 18 of that year, when North andSouth exchanged lists of their prisoners of war, North Korea reported that it held only 7,412 SouthKorean POWs, and, at the end of the war two years later, North Korea repatriated only 8,341South Koreans.SeeHeo Man-Ho,South Korea’s Forgotten POWs,CHOSUNILBO, Dec. 30, 1999.313See “Forgotten” POWs Focus of Korean Talks,NEWYORKTIMES, Aug. 24, 2005.309310

but also because South Korea’s government-sponsored media outlets seek toavoid antagonizing North Korea.314Today, the South Korean government says that North Korea is holding 542South Korean POWs and 486 South Korean civilians who were abductedmore than 50 years ago during the Korean War.315The North Koreangovernment says that the South Korean civilians in the North from theKorean War “defected voluntarily,” but has refused to provide access to them.316c. Post-Korean War AbductionsIn the mid-1970s, while North Korea was still under the rule of his father,Kim Jong Il – then in charge of North Korea’s espionage operations – decidedthat North Korean spies needed to be trained to blend in with capitalists inforeign lands.317North Korea’s abduction practices did not focus on foreignofficials or persons possessing valuable secret information. Instead, randompersons were taken from their families and homelands. North Korean abductorswere ordered to bring foreign nationals inmagjabi(a Korean term meaning“grab anyone”).318The victims were abducted to be used as instructors forNorth Korean spies.319(1) South Korean AbducteesBetween 1955 and 1987, North Korea abducted as many as 3,790 SouthKoreans, most of whom were fishermen; 480 of these abductees have neverreturned.320While most of the South Korean abductees were ordinary people,there were also some high-profile exceptions.Following the orders of movie fanatic Kim Jong Il, North Korean agentsabducted famous South Korean actress Choi Un-hee.321Choi had appeared ina variety of Korean television dramas and motion pictures beginning in the

See id.Another South Korean POW, Jun Yong-il, who was captured 50 years earlier, escaped in2002 at the age of 72 after he swam across North Korea’s river border into China.See S. KoreaPOW Celebrates Escape,BBC NEWS, Jan. 19, 2004. In 1997, South Koreans Kim Bok-ki andPark Dong-il, who had both been listed as killed in action during the Korean War, escaped fromNorth Korea, where they had been held as slave laborers for 45 years.See South Korean POWsEscape After 45 Years,CBC NEWS, Dec. 14, 1998.315The same report also noted that the South Korean government lists 542 other South Koreanprisoners of war who are also still detained in North Korea.SeeHisane Masaki,Japan Puts MorePressure on North Korea,ASIATIMES, Jun. 16, 2006.316See id.317SeeTakayama & Thomas,supranote 303.318See id.319See North Korean Abductions,CNN, Jun. 28, 2006,available athttp://transcripts.cnn.com/TRANSCRIPTS/0606/28/i_ins.01.html.320See supranote 300.321SeeTakayama & Thomas,supranote 303; Mike Thomson,Kidnapped by North Korea,BBC,Mar. 5, 2003,available athttp://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/2821221.stm.314

late 1950s.322She was abducted from her Hong Kong hotel in January 1978and taken to North Korea.323In July 1978, Choi’s husband, South Korean director Shin Sang-Ok, wentto Hong Kong to investigate his wife’s disappearance, and he too disappeared.324Kim Jong Il was said to have been obsessed with the couple’s talents for yearsbefore they were abducted.325The couple later said Kim told them that hepersonally ordered them “brought” to North Korea to help develop NorthKorea’s film industry.326Shortly after arriving in Pyongyang, Shin attemptedto escape several times and was imprisoned for four years at Prison No. 6,where he lived on a diet of grass, salt, and rice.327He then directed sevenfilms, with Kim Jong Il acting as an executive producer, includingPulgasari,agiant-monster film that is supposed to portray the effects of uncheckedcapitalism.328Shin is quoted as saying: “I hated Communism, but I had topretend to be devoted to it, to escape from this barren republic. It waslunacy.”329Choi and Shin escaped their North Korean captors in 1986.330A more typical story of a North Korean abduction is that of ChoiChong-suk. Choi was captain of a South Korean fishing boat,Tongjin-ho,which was captured near the maritime border on the West Sea on January 15,1987.331Along with Choi, 11 other fishermen on the boat were also taken toNorth Korea. Choi’s daughter, Choi Woo-Young, now leads the Families ofthe Abducted and Detained in North Korea and has been a vigorous advocateon behalf of her father and other abductees. “He went out to sea to fish, andit was the last time I saw his face. He is still a 42-year-old father to mealthough 18 years have passed since his disappearance,” she said.332Choilearned in 1999 that her father had been seen in a North Korean politicalprison camp, and she continues to advocate for his freedom.333(2) Japanese AbducteesAlthough the Japanese government only recognizes the cases of 16abductees334, there may have been as many as 70 to 80 Japanese abducted to

SeeAhra Cho,Korean Movie Giant Passes Away,Embassy of the Republic of Korea (Apr. 2006),available athttp://www.dynamic-korea.com/etc/people_new.php?uid=200600023122323See id.324SeeTony Rayns,Shin Sang-Ok,THEINDEPENDENT, May 6, 2006.325See Shin Sang-ok, Pioneer of Korean Cinema, Passes Away,CHOSUNILBO, Apr. 12, 2006.326See Filmmaker Abducted by N. Korea,CHICAGOSUN-TIMES, Apr. 14, 2006.327SeeJohn Gorenfeld,The Producer from Hell,THEGUARDIAN(UK), Apr. 4, 2003.328SeePark Chung-a,Shin Sang-ok, Pioneer Director, Dies,KOREATIMES, Apr. 12, 2006.329Gorenfeld,supranote 327.330See id.331See Daughter Calls for Abducted Father’s Return From North,KOREATIMES, Oct. 19, 2005.332See id.333See id.334See Japan: Abduction Row Key to North Korea Ties, supranote 301.322

North Korea.335In 2002, Kim Jong Il admitted that North Korea’s special forceshad abducted at least a dozen Japanese nationals during the 1970s and 1980s.336Japanese abductees included a beautician, a schoolgirl, and couples onseaside dates.337One of the most publicized abductions of a Japanese nationalis that of Megumi Yokota.338Yokota was 13 years old when she disappearedon her way home from badminton practice nearly 30 years ago.339The juniorhigh school girl was last seen by a school friend on November 15, 1977.340Yokota’s family initially was told by North Korea that she committed suicidein 1993 and the family was given a jar of ashes supposedly holding herremains.341DNA tests of the ashes, however, showed that the remains werethose of two other persons.342North Korea then stated that, while being held,Yokota had married and given birth to a daughter before dying in 1994.343The man identified as Yokota’s husband is Kim Young-nam, a SouthKorean who himself was abducted in 1978 when he was a 16-year-old highschool student.344His parents had believed that he accidentally drowned.345In2006, 28 years after he disappeared, he spoke to journalists in Seoul. Kim,now 45 years old, stated that when he was first taken to North Korea, he “wasfrightened, but little by little [he] became closer to the people of the North,and [his] heart softened.”346He claimed that he was not abducted from abeach, but instead was rescued by a North Korean vessel after he fell asleep ona raft and drifted into open water. He went on to explain that he had“voluntarily” decided to stay in North Korea after learning he could receivefree university tuition.347When questioned about Yokota, Kim stated that he had no knowledge ofwhether she had been abducted and claimed that, despite being married to herfor eight years, the topic never arose.348DNA tests confirmed that an 18-year-old girl named Kim Hye-gyong is Yokota’s and Kim’s daughter.349TheJapanese government wants Kim Hye-gyong to be allowed to go to Japan to

See N. Korean Defector Says 70-80 Japanese Abducted by North, supranote 302.See North Korea Apologizes to Japan for Bizarre Tale of Kidnap and Intrigue,THEGUARDIAN(UK), Sept. 17, 2002.337See id.338SeeTakayama & Thomas,supranote 303.339See id.340See North Korea Apologizes to Japan for Bizarre Tale of Kidnap and Intrigue, supranote 336.341SeeTakayama & Thomas,supranote 303.342See id.343See It Takes Japan to Find Our Missing in N. Korea,CHOSUNILBO, Apr. 11, 2006.344See Parents of Abduction Victims in Emotional First Meeting,CHOSUNILBO, May 16, 2006.345See North Korean Abductions, supranote 319.346Kim Young-nam Denies Abduction by N. Korea,CHOSUNILBO, Jun. 29, 2006.347See id.348See Kim Young-nam “Never Asked” if Wife Was Kidnapped,CHOSUNILBO, Jul. 6, 2006.349See North Korean Abductions, supranote 319.335336

live with Yakota’s family, but North Korea refuses.350Kim has stated thatYokota killed herself in 1994 and that Japan’s claims regarding DNA tests ofher ashes were “clumsy and childish allegations.”351This statement regardingthe DNA tests is consistent with North Korea’s position that the test resultsare part of a strategy to discredit North Korea.352Yokota’s parents still holdout hope that their daughter is alive.353Unlike the South Korean government, which has been criticized heavily byfamilies of abductees for its unwillingness to intervene with North Korea ontheir behalf, the Japanese government has made the abduction of their nationalsa major issue of international concern.354

North Korea’s Dr. Yi Sung-Ki – the “godfather” of North Korea’s WMDprogram – began overseeing the construction of a major chemical weaponsfacility in South Hwanghae Province as early as 1961.355This evidencedemonstrates that, for nearly its entire existence, North Korea has activelypursued a multi-faceted program to obtain and stockpile WMD.356NorthKorea’s WMD program includes researching, creating, and purchasing biologicalweapons, chemical weapons, ballistic missiles, and nuclear weapons.357NorthKorea has spent tremendous amounts of money pursuing this program; areasonable estimate for the amount spent is in the tens of billions of dollars.358Each part of this program is discussed below.See A Child of North Korea’s Abductions,CHOSUNILBO, Jun. 28, 2006.Id.352See Megumi Yokota Remains “May Have Been Mixed Up,”CHOSUNILBO, Jul. 3, 2006.353See North Korean Abductions, supranote 319.354See Japan: Abduction Row Key to North Korea Ties, supranote 301.355SeeNORTHKOREACHEMICAL ANDBIOLOGICALWEAPONMILESTONES– 1969-2005 11 (TheRisk Report, Vol. 4, Jul.-Aug. 2005) (hereinafter CW & BW MILESTONES).356SeeJOELS. WIT ET AL., THESIXPARTYTALKS ANDBEYOND: COOPERATIVETHREATREDUCTION ANDNORTHKOREA5 (Center for Strategic and International Studies, 2005).357SeeUNCLASSIFIEDREPORT TOCONGRESS ON THEACQUISITION OFTECHNOLOGYRELATING TOWEAPONS OFMASSDESTRUCTION ANDADVANCEDCONVENTIONALMUNITIONS, 1-JANUARY-31DECEMBER2004 4 (Central Intelligence Agency, 2005) (hereinafter CONGRESSIONALREPORT ONWMD).358SeeWIT,supranote 356, at 5.350351

a. Biological Weapons (BW)Beginning in the early 1960s, Kim Il Sung ordered his nation’s scientists todevelop BW, initially with lackluster results.359Despite the slow start, NorthKorea’s program did obtain research on the etiological agents for creatinganthrax, cholera, plague, smallpox, and yellow fever.360During this initialperiod of research, North Korea also imported actual strains of anthrax,plague, and probably typhus as well, presumably from culture collections inJapan.361Not until the early 1980s, however, did the North Koreans actuallyproduce these BW agents themselves.362According to the South KoreanMinistry of National Defense (MND), by the late 1980s North Korea hadcompleted experiments using live strains of BW.363On March 13, 1987, North Korea acceded to the Biological and ToxinWeapons Convention (BTWC).364The BTWC provides in relevant part thatsignatory nations are “never in any circumstances to develop, produce, stockpileor otherwise acquire or retain (1) [m]icrobial or other biological agents, ortoxins whatever their origin or method of production, of types and in quantitiesthat have no justification for prophylactic, protective or other peaceful purposes;(2) [w]eapons, equipment or means of delivery designed to use such agents ortoxins for hostile purposes or in armed conflict.”365Despite this, North Koreahas dedicated significant resources toward the development and weaponizationof BW.Current intelligence from various sources indicates North Korea may havenumerous infectious and disease-causing agents in its stockpiles. The MNDbelieves that North Koreamayhave researched and developed cultures ofanthrax, botulism, plague, yellow fever, tuberculosis, typhoid, cholera, Koreanhemorrhagic fever, tuberculosis, typhus, and smallpox.366A higher degree ofconfidence is placed in other assessments that North Korea possesses onlyanthrax, botulism, and plague.367For its part, the MND believes that NorthKorea possesses one or two BW agents; it does not specify which agents,though anthrax and botulism are the most likely BW.368Reports further claim

that North Korea has treated its anthrax spore supply with a form ofmicroencapsulation to protect the organisms from ultraviolet light.369Finally, some US military intelligence indicates that some BW agents havebeen weaponized for delivery on a limited number of ballistic missiles.370These missiles, along with the possibility of an invasion force using the BWthrough a portable spraying system, constitute what former South KoreanPresident Kim Dae-jung believed would be part of North Korea’s “attempt toinflict an initial major blow” against South Korea.371The North Korean BW program is considered by most observers to berudimentary by Western standards.372In 2004, however, North Koreaacquired dual-use bio-technical equipment, supplies, and reagents that couldbe used to support a BW program.373b. Chemical Weapons (CW)While the BW program is rudimentary, the North Korean CW program isfar more advanced in comparison and likely includes both the production andstockpiling of CW.374North Korea is considered to be among the largestpossessors of chemical weaponry in the world, possessing between 2,500 and5,000 tons of CW375, though even these numbers are only best estimates of aprogram about which little is known definitively.376Further, North Korea hasnot signed the Chemical Weapons Convention, enabling it to continue itsproliferation unchecked.377North Korea’s CW program began even before the Korean War, with theKPA manual addressing the theories of CW operational doctrine – such asforcing an enemy to suit up for potential CW attacks and thereby reducingthe enemy’s fighting abilities.378Though research on CW began in the early1960s379, it is not believed that North Korea possessed an offensive CW arsenaluntil the late 1980s.380After that time, however, North Korea’s CW program

intensified and expanded its efforts, including some reported CW tests onpolitical prisoners.381At the present time, North Korea’s CW capabilities are believed to includethe ability to produce bulk quantities of blister, choking, nerve, and bloodagents.382These chemicals include primarily mustard gas and Lewisite(blistering), phosgene (choking), sarin (nerve), V-series nerve agents, andhydrogen cyanide (blood agent).383Intelligence reports indicate that NorthKorea is capable of weaponizing its CW stocks through a variety of deliveryvehicles, including ballistic missiles, artillery, aircraft, and possibly other,unspecified conventional means.384While much of the CW stockpiles isstored in bulk, a significant portion is reported to be loaded into artilleryshells and rocket warheads.385Estimates place the potential output of CW by North Korean facilities at4,500 tons annually in peacetime and up to 12,000 tons per year in wartime.386Simple CW agents such as mustard gas are easily produced in bulk due to thewide availability of oil-derived intermediaries such as ethylene oxide.387Basedon the costs of obtaining the materials necessary for production, however, it isunclear how North Korea would be able to manufacture large quantities ofnerve agents such as sarin, soman, and VX without putting an even greaterburden on its already limited resources.388Thus, while North Korea’s CWstockpile may not include the most sophisticated and lethal nerve agents ingreat quantities, North Korea may have large quantities of the relatively easy-to-manufacture casualty agents such as mustard, phosgene, and Lewisite.389c. Ballistic Missiles(1) Historical BackgroundNorth Korea’s ballistic missile program began in about 1960, when itreached a long-term agreement with the Soviet Union to modernize NorthKorea’s military arsenal.390By the late 1960s, North Korea had obtainedcoastal defense cruise missiles, anti-ship missiles, and artillery rockets from theSoviet Union.391

Once Soviet relations with China crumbled in the early 1960s, NorthKorea turned to China for missile assistance. This help came through aSeptember 1971 agreement for developing ballistic missiles and later a jointprogram beginning in 1977 to develop the DF-61 missile system.392Twoversions of the DF-61 were intended for production – a domestic version witha 1,000-kilometer range able to carry a 500-kilogram nuclear warhead and anexport version able to travel 600 kilometers with a 1,000-kilogram conventionalwarhead.393Importantly, the 600-km range would allow North Korea to reachany point within South Korea.394The DF-61 program was suspended andcancelled after about a year.395The 1970s did, however, see North Koreaproduce its first missile system manufactured with totally indigenouscomponents – the AT-1 Snapper anti-tank guided missile.396(2) Short-Range Missiles: Hwasong-5 and Hwasong-6 (Scuds)To overcome the problems that North Korea had in obtaining missiletechnology from China and the Soviet Union, it is believed that Kim Il Sung’sregime turned to Egypt, obtaining the Soviet R-17E – or Scud-B – fromEgypt in the late 1970s or early 1980s.397From these initial shipments, NorthKorea reverse-engineered its own version of the Scud-B missiles, called theHwasong-5, and launched its first test missile in 1984.398The Hwasong-5missiles have the capability to reach about two-thirds of South Korean territory.399Shortly after the Hwasong-5 began mass production in 1987, North Koreastarted developing the Hwasong-6, or Scud-C.400The Hwasong-6 is similar indesign to the Hwasong-5 but is made of lighter materials and has a reducedwarhead weight; these changes provide the Hwasong-6 with a range of nearly500 kilometers – enough to reach most parts of South Korea.401In total, theNorth Koreans have deployed over 600 of these Scud-type missiles, likelyarmed with either high-explosive or CW warheads.402

(3) Intermediate-Range Missiles: Nodong (Scud-D)Also in the late 1980s, North Korea initiated its intermediate-range ballisticmissile, or Nodong, program.403The Nodong was unsuccessfully test fired inMay 1990, but was later test fired successfully in May 1993.404The Nodong isbelieved to have sufficient range so that a missile fired from North Koreacould strike a target in Japan.405North Korea has now deployed as many as200 Nodong missiles.406The Nodong is believed to be capable of carrying a1,200-kilogram warhead, and likely can be armed with high-explosive, cluster,chemical, or possibly biological warheads.407(4) Long-Range Missiles: Taepodong-1 and -2Once North Korea developed short- and intermediate-range missiles, itturned its attention to developing long-range missiles capable of travelingseveral thousand kilometers. The first missile, called Taepodong-1 in theWest, was designed to deliver a 1,000- to 1,500-kilogram warhead to a rangeof 1,500 to 2,500 kilometers; the Taepodong-2 is intended to carry the samewarhead 4,000 to 8,000 kilometers.408On August 31, 1998, North Korea tested the Taepodong-1 by firing amissile over northern Japan.409It later claimed that this test launch was actuallya failed attempt to launch a satellite.410The outcry over this test launch,however, led to North Korea’s agreement in September 1999 to a missile flighttest moratorium.411North Korea then circumvented the moratorium by havingits missile customers – Iran and Pakistan – perform “surrogate testing” ofNorth Korean missiles.412Even before the Taepodong-1 test launch, development of the Taepodong-2had begun.413US intelligence sources estimate that the Taepodong-2 is capableof delivering a small payload to the western part of the continental UnitedStates.414The moratorium on missile testing to which North Korea agreed in1999 ended on July 5, 2006, when North Korea tested seven ballistic missiles

during an exercise; these launches included testing the Taepodong-2, though itfailed to launch properly.415These missile test launches caused the UNSecurity Council to unanimously adopt Resolution 1695, condemning themissile launches and imposing a partial arms embargo against North Korea.416d. Exporting WMDNorth Korea has used its WMD programs to generate foreign trade. Withrespect to CW and BW, reports state that North Korea provided CW and BWtechnology to both Syria and Iran in the early 1990s.417However, exports ofWMD are dwarfed by North Korea’s exports of ballistic missiles; a USgovernment study performed in 2004 estimated that North Korea earned$560 million from missile sales in 2001 alone.418North Korea has exported ballistic missiles for at least the last 20 years.For example, in the mid-1980s, North Korea sold Hwasong-5s to Iran, whichthen used the missiles in the “War of the Cities” against Iraq.419Iran’s use ofthe weapons provided North Korea with essentially free performance data thatit otherwise could have obtained only with extensive flight testing.420By June1987, Iran and North Korea had reached a $500 million arms agreement thatprovided 90 to 100 Hwasong-5s to Iran and established a missile assemblyfacility in Iran.421In December 1990, North Korea sold both types ofHwasong missiles to Iraq.422North Korea has also sold Hwasong-6 missiles toIran, Syria, Egypt, Vietnam, Libya, and possibly to Sudan423and Yemen.424In addition to exporting short-range missiles, North Korea has sold themid-range Nodong missiles to numerous countries, including Libya, Iran,Pakistan, and Syria.425Pakistan eventually received shipments of Nodongmissiles in the mid-to-late 1990s, likely in return for both hard currency andnuclear weapons technology426, as mentioned above. North Korea also sold the

See id.SeeAFTERNORTHKOREA’SMISSILELAUNCH: ARENUCLEARTALKSDEAD? (International CrisisGroup, Asia Briefing No. 52, Aug. 9, 2006), at 1.417SeeU.S.-KOREANRELATIONS,supranote 412, at 7.418SeeHerskovitz,supranote 83.419See id.420See id.421SeeBERMUDEZ,supranote 390, at 12. The same source notes that Egypt was providing itsScud missile technology to Iraq during the same war.422SeeCHRONOLOGY OFNORTHKOREA’SMISSILETRADE ANDDEVELOPMENT: 1990-1991 (Centerfor Nonproliferation Studies)citingSTEVEEMERSON, WALLSTREETJOURNAL, Jul. 10, 1991.423SeeBERMUDEZ,supranote 390, at 18.424SeeBALLISTICMISSILECAPABILITIES,supranote 399, at 5.425SeeMISSILEOVERVIEW,supranote 392.426SeeGAURAVKAMPANI,Second Tier Proliferation: The Case of Pakistan and North Korea,THENONPROLIFERATIONREVIEW(Fall-Winter 2002), at 107.415416

long-range Taepodong-1 missiles to Iran and Pakistan in the late 1990s andearly 2000s, where those missiles were test fired.427e. Nuclear WeaponsDespite signing the Treaty on the Non-Proliferation of Nuclear Weapons(NPT) in 1985428, North Korea has been accumulating plutonium since1986.429North Korea’s nuclear program was jump-started in the mid-1980swith the building and commissioning of a 5-megawatt atomic reactor inYongbyon, 60 miles from Pyongyang.430It is believed that this reactor wasshut down in 1989 for 70 days to remove the fuel rods in the reactor andreprocess those rods into plutonium suitable for nuclear weapons.431(1) The Agreed FrameworkConcerns regarding the North Korean nuclear program grew in the 1990s.During 1994, tensions between the United States and North Korea wereescalating over the Yongbyon reactor and its adjacent reprocessing facility.432The North Koreans were on the verge of expelling inspectors from theInternational Atomic Energy Agency (IAEA), pulling out of the NPT, andremoving 8,000 nuclear fuel rods from the Yongbyon reactor – once again toreprocess the fuel rods for use in nuclear weaponry.433Later intelligencereports indicate that also during 1994, North Korea may have smuggledplutonium from Russia.434This led former US President Jimmy Carter totravel to Pyongyang in June 1994 to talk with Kim Il Sung.435An agreementwas reached that, once signed on October 21, 1994, became the US-KoreanAgreed Framework (Agreed Framework).436The Agreed Framework provided for suspending the Yongbyon reactor’soperations and suspending the construction of larger 50-megawatt and 200-megawatt reactors.437North Korea reiterated its commitment to the NPT,locked up the fuel rods that had been removed from the reactor, and agreed tolet IAEA inspectors monitor the facility.438Finally, North Korea also agreed toSeeU.S.-KOREANRELATIONS,supranote 412, at 6SeeFred Kaplan,Rolling Blunder: How the Bush Administration Let North Korea Get Nukes,WASHINGTONMONTHLY, May 2004.429SeeDAVIDALBRIGHT ET AL., THENORTHKOREANPLUTONIUMSTOCKMID-2006 1 (Institutefor Science and International Security, Jun. 26, 2006).430SeeLARRYA. NIKSCH, NORTHKOREA’SNUCLEARWEAPONSPROGRAM8 (CongressionalResearch Service, May 25, 2006) [hereinafter NUCLEARWEAPONSPROGRAM].431See id.432SeeKaplan,supranote 428.433See id.434SeeU.S.-KOREANRELATIONS,supranote 412, at 12.435SeeKaplan,supranote 428.436See id.437SeeU.S.-KOREANRELATIONS,supranote 412, at 2.438SeeKaplan,supranote 428.427428

take steps to implement the 1991 North-South Joint Declaration on theDenuclearization of the Korean Peninsula.439In return, the United States – with South Korea and Japan providingfinancial backing – agreed to provide two light-water nuclear reactors forelectricity and fuel oil and pledged not to invade North Korea.440Once thefirst light-water reactor came on line – with a targeted date of 2003 – theNorth Koreans agreed that they would allow intrusive inspections of allnuclear sites; when the second reactor was finished, North Korea would shipthe 8,000 fuel rods out of the country.441Finally, the two countries were tonormalize political relations.442(2) Trading Missiles for Nuclear TechnologyAs mentioned above, North Korea relies heavily on missile exportation forhard currency. But it has also used missile exports, particularly Nodongmissiles, as barter to obtain nuclear technology from Pakistan.443As early as1992, Pakistani officials visited North Korea to view Nodong missile tests.Sales of Nodong missiles were finalized through high-level meetings – includingthe visit of Pakistani Prime Minister Benazir Bhutto to Pyongyang inDecember 1993.444In the late 1990s, the relationship between Pakistan and North Koreadeepened, with intelligence reports indicating an increasing frequency of cargoflights between the two countries in the fall of 1997 and early 1998.445Ataround the same time, it appears that the former head of the Khan ResearchLaboratories, Dr. A.Q. Khan, provided North Korea with designs forPakistan’s older gas centrifuge uranium enrichment process.446Between 1997and July 2002, Pakistani cooperation on nuclear weapons technology involvedthe exchange of nuclear personnel, and the sharing of technical knowledge,design information on gas centrifuges, machinery, and possibly nuclearmaterial.447This type of technology would allow North Korea to producehighly enriched uranium (HEU)448, which Pakistan had been producing sincethe 1980s.449North Korea’s HEU program dates at least from 1996.450

(3) The End of the Agreed FrameworkThe Agreed Framework disintegrated in late 2002, when the United Statesclaimed publicly that North Korea had revealed a secret nuclear weaponsprogram based on HEU in the course of multilateral talks.451Shortly after theAgreed Framework fell apart, North Korea once again expelled IAEA inspectorsbecause there was “no longer justification” for the inspectors to remain.452Inearly 2003 and effective April 10, 2003, North Korea withdrew from the NPT.453North Korea immediately denied that an HEU program existed, but thenadmitted on February 10, 2005, that it had nuclear weapons and stated that itwould increase its nuclear arsenal to defend against a hostile US policy.454(4) Current Status of the North Korea Nuclear ProgramNorth Korea has been accumulating plutonium since 1986.455It is likelythat North Korea has been using spent nuclear fuel from its reactor atYongbyon to produce weapons-grade plutonium.456The Yongbyon site wasshut down first in 1989, and the intelligence community estimates that NorthKorea – in a “worst case” scenario – separated up to 10 kilograms of plutoniumbefore 1992 as a result.457After that same reactor was shut down in 1994 andits spent fuel placed in storage, no plutonium was likely produced until 2003,at which time North Korea processed the stored spent fuel.458The Yongbyonreactor was also taken off line in April 2005, again with the likely purpose ofunloading the fuel; the reactor core was estimated to contain 10 to 15 kilogramsof plutonium at that point.459Based on these three shutdowns, it is estimatedthat North Korea has produced a total of 43 to 61 kilograms of plutonium, ofwhich 20 to 53 kilograms are usable in nuclear weapons.460It is estimated thata country like North Korea would need six to eight kilograms of plutonium toproduce a single atomic bomb.461Some reports state that North Korea may have as many as ten nucleardevices in its possession already.462If true, it would seem that the Nodongmissiles are the most likely type of missile to carry the nuclear payload, asSeeNUCLEARWEAPONSPROGRAM,supranote 430, at 4.NORTHKOREA: THENORTHKOREANDISARMAMENTTALKS( Council on Foreign Relations,Jul. 25, 2005).453SeeSQUASSONI,supranote 446, at 3.454SeeInternational Crisis Group,supranote 416, at 2.455DAVIDALBRIGHT ET AL., THENORTHKOREANPLUTONIUMSTOCKMID-2006 1 (Institute forScience and International Security, Jun. 26, 2006).456See id.457See id.at 2.458See id.at 3.459See id.460See id.461SeeNUCLEARWEAPONSPROGRAM,supranote 430, at 9.462SeeScott Stossell,North Korea: The War Game,THEATLANTICMONTHLY, Jul.-Aug. 2005.451452

there is little evidence to suggest that North Korea could produce a warheadlight enough for the Taepodong-2 missiles.463With respect to HEU, sources vary in their estimates as to how quicklyNorth Korea could produce a warhead. In December 2002, the CIA estimatedpublicly that North Korea could produce two atomic bombs annually usingHEU, starting in 2005.464In April 2004, a US intelligence official was quotedas saying that the North Korean infrastructure for HEU could produce asmany as six atomic bombs annually.465Others estimate that production couldnot begin until 2006 or 2007.466North Korea recently announced it plans tostep up production of nuclear weapons fuel by unloading fuel rods atYongbyong reactor and extracting plutonium.467In October 2006, NorthKorea’s Foreign Ministry announced the country’s intent to conduct a nucleartest.468Shortly thereafter, the UN Security Council unanimously adopted anon-binding presidential statement urging North Korea to refrain fromconducting a nuclear test.469Despite this warning, North Korea detonated anuclear device on October 9, 2006.470

SeeALBRIGHT,supranote 455, at 1.SeeNUCLEARWEAPONSPROGRAM,supranote 430, at 9.465See id.466See id.467See North Korea to Challenge U.S. on Nuclear Fuel,NEW YORKTIMES, Sept. 25, 2006.468See North Korea to Conduct Nuclear Test, Government Says,BLOOMBERG, Oct. 3, 2006.469See, e.g., UN Council Presses North Korea to Drop Plans for Nuclear Test,NEWYORKTIMES, Oct. 7, 2006.470See, e.g., N. Korea Conducts Nuclear Weapons Test,ASSOCIATEDPRESS, Oct. 9, 2006.471SeeKEUMSOONLEE, THEBORDER-CROSSINGNORTHKOREANS: CURRENTSITUATIONS ANDFUTUREPROSPECTS18 (Korea Institute for National Unification, 2006) (estimating there are30,000 to 100,000 North Korean refugees living in neighboring countries);see alsoACTS OFBETRAYAL: THECHALLENGE OFPROTECTINGNORTHKOREANS INCHINA5 (RefugeesInternational, Apr. 2005) (noting that “the most common estimate” of migrants and asylum seekersin China is 100,000 to 300,000). There is no precise determination of the numbers of refugees whohave left North Korea both because data is very difficult to track and the UN High Commissionerfor Refugees (UNHCR) is not permitted access to individuals who have fled North Korea.472SeeTestimony of Joel Charny, Refugees International,The Hidden Gulag: Putting Human Rightson the North Korea Policy Agenda,HEARINGBEFORESENATEFOREIGNRELATIONSCOMMITTEE[hereinafter Charny Testimony].473See id.; see alsoKEUMSOONLEE,supranote 471, at 7-17 (dividing motivations for escape fromNorth Korea into “push factors,” such as food shortages, a sense of deprivation, and expectationsfor a better life, and “pull factors” including support from Korean communities in China, activitiesby relief organizations, and job opportunities).463464

left North Korea, even so-called economic migrants may likely be characterizedasrefugees sur place.474The North Korean economy’s collapse in the 1990s, together with thesevere famine brought on by agricultural disasters in 1994 and 1995, promptedhundreds of thousands of North Korean refugees to seek help across theborder.475Some estimates suggest that a million North Koreans and perhapsmany more died in their homeland of sickness and hunger during the foodcrisis in the 1990s.476North Korean law criminalizes defection from the country, includingattempts to gain entry to a foreign diplomatic facility to seek political asylum.477The North Korean regime differentiates between persons who cross the borderin search of food – who might only be sentenced for a few months under therevised criminal code adopted in 2004 – and those who cross for politicalpurposes, who may receive heavy sentences.478Individuals who cross the borderto defect or seek asylum are subject to “labor correction.”479In serious cases,defectors or asylum seekers are subjected to indefinite terms of imprisonmentand forced labor, confiscation of property, or death.480Many refugees who arereturned have been imprisoned under harsh conditions, including assignmentto hard labor on construction projects or in the fields, with limited rations.481Once across the border, refugees are extremely vulnerable torefoulement(“forced return”) back to North Korea.482To date, many neighboring countriesArefugee sur place,is a person who becomes a refugee after leaving his or her country of originbecause of the treatment he or she might receive if returned.See, e.g., The North Korean RefugeeCrisis: Human Rights and International Response(U.S. Committee for Human Rights in North Korea,forthcoming 2006); Elisa Massimino, Director, Lawyers Committee for Human Rights (nowHuman Rights First),Examining the Plight of Refugees: The Case of North Korea,SENATEJUDICIARYSUBCOMMITTEE ONIMMIGRATION, Jun. 21, 2002, at 3. It is also worth noting that the SecurityCouncil, when considering outflows of “refugees” as part of the transnational impact of an internalcountry situation, in practice combines refugees who meet the Refugee Convention definition andeconomic migrants because of the difficulty of distinguishing between them and the irrelevance ofthe distinction for the purpose of measuring a cross-border impact.See infraAppendix IV.475SeeLEE,supranote 471, at 7.476See, e.g.,THEINVISIBLEEXODUS: NORTHKOREANS IN THEPEOPLE’SREPUBLIC OFCHINA(Human Rights Watch, Nov. 2002) (explaining that, according to the World Food Programme,annual production of rice and maize in North Korea fell from 8 million metric tons in the 1980sto 2.9 million in 2000) [hereinafter THEINVISIBLEEXODUS]. Human Rights Watch also estimatesthat approximately 57 percent of the population is malnourished, including 45 percent ofchildren under 5.Id.477See Country Report on Human Rights Practices 2005: North Korea(U.S. Department of State,Mar. 8, 2006).478See id.479Id.480See id.; see also Special Report: North Korea Famine and Refugee Crisis,ASIATODAY, Jun. 20, 2002.481See id.482While it is appropriate for a government to deport a person with no legal right to stay in itscountry, the return of persons who have been determined to be refugees or who could be refugees(asylum seekers) is consideredrefoulement. See The North Korean Refugee Crisis: Human Rightsand International Response, supranote 474.474

have not given North Korean escapees the status of “refugees” despite significantevidence of abuse in North Korea. Due to pressure from the North Koreangovernment, neighboring countries routinely return North Korean refugeesfound within their borders in an effort to maintain good relations with NorthKorea and to deter further migration.483Even when they are not deported, refugees have little defense againstexploitation in their new country. Financial incentives to turn in refugees tothe authorities and penalties for harboring refugees have increased the dangerto North Korean refugees from everyone they encounter.484Landlords oftendemand extremely high rent for shelter, make direct demands for payoffs, andcharge “departure” fees when refugees finally move on.485Refugees who flee toneighboring countries describe a desperate life in hiding, characterized byviolations of their rights to physical integrity, freedom of movement, access tomedical care, and recourse to the legal system.486There are also many reports of outright sexual slavery, in which NorthKorean women escapees are misled or abducted and sold to foreign men.487Other North Korean women, some with husbands and children at home,arrive in their destination country with the full expectation of selling themselves,either to survive and be fed or to send money back home.488In May 2006, sixrefugees from North Korea, including four women who were sold into sexualslavery or forced marriages, were admitted to the United States as refugees;they then described the devastating abuse they had suffered at the hands oftheir prior captors.489Other reports have suggested that the trafficking ofNorth Korean women is a significant problem.490The migration of North Korean children has also created significant andgrowing problems in their destination countries. These children, some ofwhom have lost one or more parents or who have parents incapable of caringfor them, often become beggars in markets, train stations, airports, andkaraoke bars.491Most appear to be boys, age 10 or older.492Some take refugein shelters established by missionary or humanitarian groups; others sleep onthe streets. Many of these street children have serious psychological trauma

from being raped, confined, or beaten. These children have also beendeprived of their right to education, often for years. Typically, the streetchildren are also the first to be rounded up in periodic crackdowns anddeported to North Korea.493The numbers of North Koreans fleeing to South Korea has increased inrecent years. There are estimated to be over 8,000 North Koreans living inSouth Korea as of September 2006.494More than 160 refugees have fled toSouth Korea by seeking sanctuary in foreign embassies.495Another 468refugees, the largest group to reach the South since the end of the Korean War,arrived in Seoul in July 2004 aboard military jets. All told, approximately6,500 North Korean refugees arrived in South Korea between 2000 and 2005,up from approximately 480 who managed to reach the South between 1990and 1999.496They are part of a growing tide of North Koreans fleeing famineand oppression in their home country, even as South Korea tightens its ownborder.497Under the South Korean constitution, North Koreans are consideredcitizens of Korea; they are thus protected by laws and rights in the South and,in theory, are to be welcomed.498Moreover, North Koreans are to be regardedas “brothers and sisters” under South Korea’s “Sunshine Policy,” which seeksreconciliation between the two Koreas.499Nonetheless, reports from Seoulindicate that South Korean citizens and the South Korean government areambivalent about the suffering of the North Koreans. As the number ofrefugees arriving in South Korea increases, many South Koreans are increasinglyconcerned about the economic cost of easing refugees into South Korean life.Some citizens have taken a cautious attitude toward North Korean refugees,fearing economic turmoil if North Koreans are admitted in large numbers.500Other citizens express open dislike of North Korean refugees, who aresometimes unfairly accused of salacious acts, petty crimes, taking jobs fromSouth Koreans, or being lazy and making themselves a burden on SouthKorean society.501

See id.See Swell of North Korean Refugees Could Strain Thailand’s Tolerance,CHRISTIANSCIENCEMONITOR, Sept. 7, 2006.495SeeDonald MacIntyre,Kim Sang Hun: One Man Against Kim Jong Il,TIMEMAGAZINE, Apr.28, 2003.496SeeMinistry of Unification (South Korea),Facts and Figures, available athttp://www.unikorea.go.kr/en/ENK/ENK0301R.jsp.497SeeDonald MacIntyre,A Whole New World,TIMEMAGAZINE, Aug. 2, 2004.498SeeRobert Marquand,North Korean Refugees Arrive in Seoul,CHRISTIANSCIENCEMONITOR,July 28, 2004.499See id.; see also supraSection II.C.3.500SeeCharny Testimony,supranote 472.501SeeMarquand,supranote 498;see also The North Korean Refugee Crisis: Human Rights andInternational Response, supranote 474 (noting treatment of North Korean refugees in South Koreain section by Andrei Lankov).493494

3. Drug TraffickingNorth Korea’s participation in drug production and trafficking began in the1970s, and accelerated after the reduction in state aid from China and Russiain the early 1990s.505This section discusses the North Korean state policyencouraging and participating in the drug trade. Despite Kim Jong Il’sconsistent denials, the evidence demonstrates that North Korea engages indrug trafficking – from $500 million to $1 billion per year506– as a source offoreign currency to fund its WMD program and other government initiatives.507It is difficult to ascertain North Korea’s economic and trade figures with ahigh degree of accuracy because the country does not release these statistics.508Nevertheless, independent analysts have enough data to conclude that itseconomy suffered a notable blow in the early 1990s when aid from China andRussia declined.509In 2003, North Korea’s annual GDP was estimated tobe between $750 to $1,000 per capita.510While North Korea importsapproximately $2 billion in goods per year, it only exports an estimated $1.1billion per year. This leaves an estimated trade deficit of $900 million.511To compensate for the trade deficit and to fund other major governmentexpenditures for the military and its WMD programs, North Korea hasincreased production and trafficking of illegal narcotics.

See Special Report: North Korea Famine and Refugee Crisis,ASIATODAY, Jun. 20, 2002.SeeMacIntyre,supranote 497.504See id.505SeeLCDR CINDYHURST, NORTHKOREA: A GOVERNMENT-SPONSOREDDRUGTRAFFICKINGNETWORK3 (Army Foreign Military Studies Office, 2006).506Heroin Busts Point to Source of Funds for North Koreans,WALLSTREETJOURNAL, Apr. 23, 2003(referencing figures from U.S. military command in South Korea).507See id.at 4. According to the U.S. State Department, “it is likely, but not certain, that theNorth Korean government sponsors criminal activities, including narcotics production andtrafficking, in order to earn foreign currency for the state and its leaders.” INTERNATIONALNARCOTICSCONTROLSTRATEGYREPORT2006 (U.S. Department of State, Mar. 2006)[hereinafter INCSR REPORT].508See id.509See id.510SeeRaphael F. Perl,Drug Trafficking and North Korea: Issues for U.S. Policy(CongressionalResearch Service, Mar. 4, 2005), at 3.511See id.502503

North Korea began producing narcotic drugs as a secret state policy in thelate 1970s; by the late 1980s, Kim Il Sung began producing and selling drugsin greater quantities.512As the raw materials and energy resources necessaryfor producing legitimate exports disappeared in the early 1990s, North Koreabecame more reliant on illegal sources of foreign currency.513From thebeginning and under Kim Il Sung’s direction, opium was grown on secret,heavily guarded opium farms, then sent to the government to be processedinto heroin.514According to South Korea’s National Intelligence Service, onesuch destination is the Nanam drug factory in Chongjin city, which wasestablished by Kim Il Sung in 1993 and is operated by the People’s ArmedForces Department.515As drug production increased, so did North Korea’s production of poppy,the principal ingredient for opium. North Korea has never hid the fact that itcultivates poppies, but claims that it is for pharmaceutical production.516In1997, Kim Jong Il ordered each collective farm in North Korea to growapproximately 25 acres of poppies beginning in 1998; and the United Statesestimates that North Korea has approximately 10,000 to 17,000 acres of landunder poppy cultivation.517If this statistic is accurate, North Korea has thepotential to harvest 30 to 44 tons of opium.518While this is only 10 to 15percent of the 310 tons of opium produced by a country like Burma519, NorthKorea still produces enough opium to manufacture 4.5 tons of heroin peryear.520In addition to opium and heroin, North Korea also producesmethamphetamines for export.521In 1996, North Korea began to producemethamphetamines after heavy rains decreased its income from poppyproduction.522Today, North Korea’s maximum methamphetamine productioncapacity is estimated to be 10 to 15 tons per year.523Again, as with its opiumproduction, North Korea’s production of methamphetamine is only a fractionof the total world market, which produces approximately 480 tons per year.524North Korean diplomats have a long history of dealing in contraband.Almost all of North Korea’s diplomatic corps in Scandinavia were expelled inSee id.at 3;see alsoPerl,supranote 510, at 11.SeeHURST,supranote 505, at 4.514See id.at 3-4.515See id.at 6.516See id.at 5.517See id.518See id.at 5;see alsoPerl,supranote 510, at 9.519See Myanmar Opium Survey 2005(UN Office on Drugs and Crime, Nov. 2005).520SeeHURST,supranote 505, at 5.521See id.at 11.522See id.at 9.523See id.524See World Drug Report 2006123 (UN Office of Drugs and Crime, Jun. 26, 2006).512513

1976 for running a smuggling ring for alcohol and cigarettes through Norway,Denmark, and Finland.525Since that incident, more than 20 North Koreandiplomats, agents, and trade officials have been implicated in illicit drugoperations in more than 12 countries, including Egypt, Venezuela, India,Germany, Nepal, Sweden, Zambia, Ethiopia, and Laos.526In addition, since1976, North Korea has been linked to over 50 incidents involving drugseizures in at least 20 countries.527With regard to current drug trafficking, Japanese drug officials report that43 percent of all illegal drugs imported to Japan come from North Korea,providing a large cash profit for the North Korean government.528Taiwanesepolice and prosecutors also report an increase in drugs flowing from NorthKorea to Taiwan, primarily heroin.529Raids in Taiwan and Japan haveuncovered heroin that was packed in the exact same rice bags that were usedto ship donated rice to North Korea as famine relief – thus identifying NorthKorea as the source of the drugs.530Though North Korea is a closed, secretive regime, independent statementsfrom defectors corroborate each other and all indicate that the North Koreangovernment is actively involved in the country’s drug production.531Onedefector, Kim Dok Hong, was a senior official of North Korea’s Workers’ Partyand the top aide to Kim Il Sung’s secretary.532According to Kim Dok Hong,Kim Jong Il commonly spoke of the use of opium as a means for earning hardcurrency, and actually traveled to towns to discuss North Korea’s strategy forgrowing opium poppies.533Finally, many experts believe that North Korean diplomats cooperate withorganized crime groups in other countries, including the Chinese triads, theJapanese yakuza, and the Russian mafia.534North Korea also has ties withgroups based in Southeast Asia’s Golden Triangle, the cross-border area whereopium and heroin are produced in Burma, Thailand, and Laos.535The NorthKorean government’s association with these parties is coordinated by BureauNo. 39, a government office created to procure foreign currency for Kim Jong IlJay Solomon & Jason Dean,Drug Money: Heroin Busts Point to Source of Funds for NorthKoreans,WALLSTREETJOURNAL, Apr. 23. 2003.526Anthony Spaeth,Kim’s Rackets,TIMEASIA, Jun. 9, 2003, at 14.527Perl,supranote 510, at 6.528Balbina Y. Hwang,Curtailing North Korea’s Illicit Activities(Heritage Foundation, Aug. 25,2003), at 4.529SeeSolomon & Dean,supranote 525.530See id.531SeeHURST,supranote 505 at 7;see alsoINCSR REPORT,supranote 507 (“As reported inprevious INCSRs, North Korean defectors and informants have long asserted that large-scaleopium poppy cultivation and production of heroin and methamphetamine occurs in the DPRK”).532See id.at 8.533See id.534See id.at 20.535See id.at 8.525

through both legitimate and illegitimate means.536Bureau No. 39 iscomprised of two parts: one engages in illegal activities and the other inlegitimate business under the Daesong Group, its Daesong Bank, and Vienna-based Golden Star Bank.537Bureau No. 39’s illegal activities reportedlyinclude opium and heroin production and trafficking, methamphetamineproduction and trafficking, counterfeiting, and smuggling.538North Korea has not been labeled a major drug-producing country becausemuch of the evidence is anecdotal and the available data cannot substantiateNorth Korea’s exact production levels.539However, clearly North Korea isactively engaging in drug production and trafficking on a significant scale,even if the precise volume remains unknown. It is likely that this activitywill continue as long as there is a significant gap between North Korea’sconsumption of raw and processed materials and the government’s ability topurchase or produce those materials.

4. Money Counterfeiting and LaunderingThe following section discusses the evolution of North Korea’s counterfeitingactivities, the evidence linking the North Korean government to these activities,and the involvement of the Banco Delta Asia in Macau in assisting NorthKorea with its illegal activities. From this discussion, it is evident that NorthKorea is systematically seeking to undermine the economic stability of theUnited States and the international monetary system.The United States has determined that a definitive connection existsbetween the North Korean government and the high-quality, counterfeit $100bills commonly known as “supernotes.”540According to the most reliablestatistics, North Korea has produced between $45 million and $100 million insupernotes since 1989541, and estimates of its current yearly production rangebetween $3 million and $25 million per year.542Sources indicate that counterfeiting has been Kim Jong Il’s passion sincethe 1970s during his father’s reign.543Upon becoming North Korea’s leader,Kim Jong Il endorsed counterfeiting as a means to pay for covert operationsand as a way to wage economic warfare against the United States.544

Despite the original purposes of this counterfeiting, as North Korea’seconomy has collapsed, the extra currency has become an economic necessity545North Korea reportedly has a $900 million trade deficit per year due toexcessive importing and insufficient exporting546, and therefore relies oncounterfeiting and other illicit activities to fund its trade deficit.547Counterfeiting produces the hard currency the regime needs to purchase notonly necessary imports but luxury items for the country’s elite.548Supernotes were first discovered in circulation in December 1989, when anexperienced money handler in the Central Bank of the Philippines becamesuspicious about a $100 bill that felt different from other bills.549The CentralBank sent the suspicious bill to the US Secret Service, which determined thebill was counterfeit. The bill had been printed on paper consisting of thesame three-quarters cotton, one-quarter linen mix used by the United States,and its manufacturer had used technology that is, in theory, only available togovernments.550There are several types of supernotes, and each version appears moreauthentic than the last; the most recent version appears to use an opticallyvariable ink that is manufactured solely for the United States government.551North Korea has purchased the closest match to the ink and has manipulatedit to resemble the ink used by the United States.552Additional evidence of North Korea’s involvement in the manufacture ofsupernotes includes instances in which North Korean officials were caughtcarrying the counterfeit bills.553In one example, in 2005 a North Koreandiplomat was arrested in Belgrade for passing supernotes.554In another, NorthKorean trading company officials carrying diplomatic passports were arrestedafter depositing $250,000 worth of supernotes in a Macau bank.555Furthermore, defectors have identified the buildings in Pyongyang andPyongsong that contain the counterfeiting equipment.556While documentationis sparse, North Korea’s involvement in this counterfeiting activity is widelyreported.

In a move to counteract the circulation of counterfeit US currency, theUnited States ordered a halt to transactions between US financial institutionsand Banco Delta Asia in Macau in September 2005.557Approximately $24million was frozen on suspicion that the Macau bank was involved with NorthKorea in both counterfeiting US currency and money laundering.558Thisaction reportedly prompted other banks to refrain from conducting transactionswith North Korea.559North Korea categorically denies its involvement in counterfeiting UScurrency, and has cited the Banco Delta Asia action as a reason for refusing toreturn to the Six-Party Talks on its nuclear program.560In truth, all thecounterfeit money circulating worldwide only constitutes one percent of thetotal supply of US currency561, and the US Secret Service has only removed$50 million worth of North Korean supernotes from circulation.562However,the United States regards freezing funds at the Banco Delta Asia as justifiedgiven its view that counterfeiting threatens any good-faith negotiationsbetween the United States and North Korea563, and that counterfeiting has thepotential to undermine the currency system of the United States.564Inaddition, the discovery of supernotes in a smaller foreign economy (e.g., Peru)that uses US currency “can cause a local crisis of confidence in the dollar.”565Producing counterfeit currency undermines the US currency system andimpacts the diplomatic relations between the United States and the rest of theworld. Though the current economic threat to the United States is minimal566,North Korea’s counterfeiting is an ongoing problem. According to one expert,“even if the counterfeiting is not worthy of being a diplomatic issue untoitself, the fact that North Korea is counterfeiting serves as a grim reminder ofthe difficulty of good-faith negotiations.”567David Asher, a former advisor inthe US State Department, observes: “If [North Korea is] going to counterfeitour currency the entire time they’re engaged in diplomatic negotiations, what

SeePress Release,Treasury Designates Banco Delta Asia as Primary Money Laundering Concernunder USA PATRIOT Act(U.S. Department of the Treasury, Sept. 15, 2005),available athttp://www.treasury.gov/press/releases/js2720.htm;see alsoFINDING THATBANCODELTAASIASARLIS AFINANCIALINSTITUTION OFPRIMARYMONEYLAUNDERINGCONCERN, 70 Fed. Reg.55215, Sep. 20, 2005.558SeeKrishna Guha,U.S. Mulls Reimposing Economic Sanctions on N. Korea Over Missiles,FINANCIALTIMES, Jul. 31, 2006.559See id.560SeeWilliam Gertz,US Sanctions Cost North Korea Millions,WASHINGTONTIMES, Jun. 16, 2006.561SeeWilliam Faries,Made in South America: New Breed of Fake U.S. Dollars,CHRISTIANSCIENCEMONITOR, Apr. 14, 2005.562SeeMihm,supranote 548, at 41.563See id.564SeeHWANG,supranote 528, at 4.565Mihm,supranote 548, at 41.566See id.567Id.557

C. The International Response1. The Six-Party TalksAfter the Agreed Framework was repudiated and North Korea withdrewfrom the NPT, bilateral relations between the United States and North Koreadeteriorated. As a result, the United States called for multilateral discussions.The Chinese government brokered talks between the two nations in April2003.569Little progress emerged from these initial talks.570What did emerge,however, was the framework for the Six-Party Talks.a. Initial Three MeetingsThe Six-Party Talks began in August 2003 as an extension of the Three-Party Talks in April of that year.571New participants for the Six-Party Talkswere South Korea, Japan, and Russia.572Topics for discussion included thedismantlement of the North Korean nuclear programs, weapons, andfacilities573and the US political and economic sanctions imposed on NorthKorea due to alleged North Korean support of international terrorism and itspoor nonproliferation record.574The first three rounds of the Six-Party Talks,held in August 2003, February 2004, and June 2004, produced little in theway of substantive discussion, leading one commentator to state that “the firstthree rounds of six party talks cannot be considered negotiations.”575b. The Fourth RoundNorth Korea announced on July 8, 2005, that it wished to resume theSix-Party Talks.576This fourth round of talks took place over two separateperiods – first from July 26 through August 7, 2005, and again fromSeptember 13 through September 19, 2005. The US representative, AssistantSecretary of State Christopher Hill, engaged the North Korean representative,Vice Minister Kim Gye-Gwan, in direct talks outside the plenary sessionsinvolving all six countries.577Id.SeeCHARLESL. PRITCHARD, SIXPARTYTALKSUPDATE: FALSESTART OR ACASE FOROPTIMISM?at the conferenceThe Changing Korean Peninsula and the Future of East Asia(BrookingsInstitution, Dec. 1, 2005).570See id.571SeeU.S.-KOREANRELATIONS,supranote 412, at 3.572See id.573See id.574SeeWIT,supranote 356, at 16.575SeePRITCHARD,supranote 569, at 1.576See id.577SeeInternational Crisis Group,supranote 416, at 2.568569

These substantive discussions led to the issuance of what was called theStatement of Principles on September 19, 2005.578The Statement ofPrinciples included apparent commitments from North Korea to: (a) abandonits nuclear weapons and its existing nuclear programs; (b) rejoin the NPT; and(c) accept IAEA safeguards at an early date.579North Korea also agreed tonegotiate a Korea peace accord outside the nuclear discussions, and evenallowed an implicit reference to the North Korean kidnapping of Japanesecitizens.580A third part of the Statement of Principles called for North Koreato be allowed to pursue a peaceful nuclear energy program through the use ofthe light-water nuclear reactor.581Finally, Pyongyang would receive energyassistance and economic cooperation, including receiving electricity fromSouth Korea.582Within hours after the Statement of Principles was issued, however, boththe United States and North Korea issued statements that served to rebut partsof the Statement of Principles.583For its part, the North Korean statementsaid that North Korea refused to abide by the tenets of the Statement ofPrinciples until such time as the United States had completely fulfilled itscommitments.584In other words, North Korea refused to abandon its nuclearweapons program until the light-water nuclear reactor was actually completed –a project estimated to take at least ten years.585c. The Fifth RoundThe Fifth Round of talks took place from November 9 through November11, 2005, in Beijing. With the background of both the rebuttals to theStatement of Principles and the intervening US crackdown on banks inMacau, in which the United States required the Macau-based Banco DeltaAsia to halt dealings with North Korea or lose access to US financial markets,the Fifth Round of talks produced no substantive agreements on any issues.586Talks ended quickly and with no date set for another round of talks.587d. Possibilities of Future TalksSince November 2005, no further Six-Party Talks have been held. InMarch 2006, US officials met with their counterparts from North Korea.SeeLARRYA. NIKSCH,The Six-Party Statement: Is It a Viable Roadmap or a Road to Nowhere?,IMPLEMENTING THESIX-PARTYJOINTSTATEMENTAND THEKOREANPENINSULA10 (KoreaInstitute for National Unification, 2005).579See id.580See id.at 11.581SeeInternational Crisis Group,supranote 416, at 2.582See id.583See id.at 3.584See id.585SeeU.S.-KOREANRELATIONS,supranote 412, at 18.586SeeInternational Crisis Group,supranote 416, at 3-4.587See id.at 4.578

According to news reports, North Korean officials set four conditions forreturning to the Six-Party Talks: the removal of what North Korea termed“financial sanctions,” forming a joint US-North Korean task force to examinethe counterfeiting concerns, giving North Korea access to the US bankingsystem, and providing North Korea with technical help on identifyingcounterfeit bills.588The United States rejected any linkage between actionstaken by the Treasury Department to combat counterfeiting, including itsactions against Banco Delta Asia, and the Six-Party Talks.589US Assistant Secretary of State Christopher Hill visited Beijing onSeptember 5, 2006, to seek Chinese assistance in pressuring North Korea torejoin the Six-Party Talks.590Assistant Secretary Hill was not optimistic thatthe North Koreans would rejoin the talks.591The recent nuclear weapons testby North Korea and the quick response from the UN Security Council haveseriously heightened tensions.

2. The United NationsDespite the efforts of various UN bodies to urge North Korea to modify itshuman rights practices, the North Korean government has refused. TheNorth Korean government has repeatedly been unwilling to engage insubstantial discussions regarding human rights or to accept technical assistancefrom the United Nations with respect to human rights.592Becomingincreasingly frustrated with the North Korean government’s obstinacy, the UNGeneral Assembly adopted a resolution expressing the body’s serious concernregarding both the government’s refusal to cooperate with – or even recognize– the Special Rapporteur for Human Rights in North Korea and the reports of“systematic, widespread and grave violations of human rights.”593The UnitedNations’ concern, however, has had no effect on the North Korean government,which to this day refuses to engage in serious discussions regarding humanrights. Thus, a Security Council resolution is the only mechanism remainingto increase the pressure on North Korea to both stop the human rights violationstaking place in the country and provide open access for humanitarian relief.

a. UN Attempts to Open Dialogue with North KoreaIn 2003, the United Nations’ former Commission on Human Rights594adopted its first resolution regarding the reported human rights abuses takingplace in North Korea.595The resolution expressed the Commission’s “deepconcern about reports of systemic, widespread, and grave violations of humanrights.”596Specifically, the resolution addressed several patterns of humanrights abuses including prison camps, restrictions on freedom of thought, themistreatment of disabled children, the prevalence of infant malnutrition, andthe violation of the fundamental freedoms of women.597The resolution calledon North Korea to allow NGOs access to the country to ensure thathumanitarian assistance was distributed to those in need. The resolution alsorequested that the UN High Commissioner for Human Rights engage in adialogue with the North Korean government in an effort to establish technicalcooperation programs in the field of human rights.598The Commission on Human Rights passed a second resolution regardingNorth Korea in 2004 in which it again expressed “deep concern at theprecarious humanitarian situation in the country.”599In addition to reiteratingthe concerns that it listed in the 2003 Resolution, the 2004 Resolution notedthe sanctions facing North Korean citizens who have been repatriated fromabroad, including their treatment as traitors, leading the repatriated citizens tobe punished by internment, torture, degrading treatment, and/or the deathpenalty.600The Resolution also voiced concern about women’s human rights601and urged the North Korean government to “put an immediate end tomaltreatment and infanticide in prison and labour camps.”602The Resolution expressed displeasure that following the 2003 Resolution,the North Korean government failed to allow the international community toexamine the reports of human rights abuses independently.603In trying tobring North Korea to discussions on human rights issues, the 2004 Resolutionrequested that a Special Rapporteur be appointed to report on the situation ofhuman rights in the country and “to establish direct contact with theGovernment and with the people of the Democratic People’s Republic of

Korea.”604The North Korean government was urged to provide full andunreserved cooperation to the Special Rapporteur to ensure his free andunlimited access to all persons in North Korea.605b. Special Rapporteur for Human Rights in North KoreaProfessor Vitit Muntarbhorn606was appointed Special Rapporteur forHuman Rights in North Korea in July 2004.607His first report to the UnitedNations was issued on January 10, 2005.608In his report, the SpecialRapporteur noted several positive actions that North Korea had taken, includingbeing a signatory to four key human rights treaties, occasionally allowing UNagencies and NGOs to enter the country, warming relations between NorthKorea and other countries, and having some legal and operations infrastructurethat can help promote and protect human rights.609The Special Rapporteur also broadly noted the following numerous humanrights concerns:[T]he right to food and the right to life; the right to securityof the person, humane treatment, non-discrimination andaccess to justice; the right to freedom of movement andprotection of persons linked with displacement; the right tothe highest attainable standard of health and the right toeducation; the right to self-determination/politicalparticipation, access to information, freedom ofexpression/belief/opinion, association and religion; andthe rights of specific persons/groups, including womenand children.610More specifically, the report discussed the catastrophic food shortages thattook place in the mid-1990s and voiced his concern that the food aid was notreaching those who needed it most, but was instead being diverted for other

Id.at��5-6.See id.at�8.606Professor Muntarbhorn is currently a professor of law at Chulalongkorn University in Bangkok,Thailand. He has served in various capacities in the United Nations system, including as SpecialRapporteur on the Sale of Children, Child Prostitution and Child Pornography (1990-1994) andas expert or advisor to many United Nations organizations. SeeVitit Muntarbhorn Appointed UNSpecial Rapporteur on Situation of Human Rights in the Democratic People’s Republic of Korea,HR/4786, Aug. 6, 2004.607SeeSPECIALRAPPORTEURFOR THECOMM’N ONHUMANRIGHTS,Question of the Violation ofHuman Rights and Fundamental Freedom In Any Part Of the World: Situation of Human Rights inthe Democratic People’s Republic of Korea,UN Doc. E/CN.4/2005/34 (Jan. 10, 2005), at 2.608See id.609See id.at��9 - 18.610Id.at 2.604605

clandestine uses.611The Special Rapporteur also discussed the lack of anindependent judiciary and noted what he called the “disconcerting practice”of collective punishment based upon guilt by association or collectivepunishment under which the families of political criminals are also punished.612Given what the Special Rapporteur called “a variety of discrepancies andtransgressions – several of an egregious nature – in the implementation ofhuman rights,” he issued 12 recommendations to the North Korean government,including a broad request that the country abide by international humanrights standards and reform its laws in accordance with those standards.613The Special Rapporteur recommended reforming the administration of justicethrough promoting an independent and transparent judiciary.614And he alsoaddressed North Korea’s abductions of foreigners, requesting that thegovernment act to resolve this specific wrongful activity quickly.615c. North Korea’s ResponseBefore the Special Rapporteur’s January 2004 report was issued, the UNHigh Commissioner for Human Rights had requested that the Commissionbe allowed to provide technical cooperation in human rights to the NorthKorean government.616On March 2, 2005, following the issuance of the Special Rapporteur’sreport, the North Korean government stated its “resolute rejection” of the2004 Resolution based on North Korea’s belief that the Resolution waspolitically motivated and that the EU, which initiated the Resolution, did sobecause it was “taking sides with the United States policy of hostility against”North Korea.617The North Korean government also refused to cooperate withthe Commission on technical advice as requested by the Commission onHuman Rights.618Rebuffed in his requests to visit North Korea, the Special Rapporteurissued his second report in August 2005 following his country visits to Japanand Mongolia to assess the impact the human rights situation in North Korea

has had on those countries.619His August 2005 report discussed and elaboratedon the issues he had raised in his January 2004 report and requested that theNorth Korean government take “immediate action to prevent abuses andprovided redress.”620The report also detailed North Korea’s militaryexpenditures for the years 1988 through 2004, noting that “the authorities ofthe Democratic People’s Republic of Korea are also under a responsibility toreduce military/defence expenditure and ensure equitable re-allocation ofresources to respond effectively to the food crisis and other areas needingdevelopment.”621d. Third Commission on Human Rights Resolution and UN GeneralAssembly ResolutionThe Commission passed a third resolution regarding the North Koreasituation in April 2005, again expressing its “deep concern about the continuingreports of systematic, widespread and grave violations of human rights.”622Inthe resolution, the Commission stated its increasing concern that the NorthKorean government refused to cooperate with any UN body, including theCommission and the Special Rapporteur.623The Commission urged theGeneral Assembly to take up the question of human rights in North Korea ifthe government did not extend cooperation to the Special Rapporteur and ifthere was no improvement in the human rights situation within North Korea.624In defiance of the 2005 Resolution, the North Korean governmentcontinued its refusal to engage or even recognize the Special Rapporteur. TheSpecial Rapporteur issued his third report on January 23, 2006, in which hedescribed his numerous attempts to obtain an invitation to visit NorthKorea.625The government responded to these requests stating that it did notrecognize the mandate of the Special Rapporteur and would not meet with orcommunicate with him regarding human rights issues.626In his report, theSpecial Rapporteur stated that there is “still a huge gap between formal

SeeSPECIALRAPPORTEURFOR THECOMM’N ONHUMANRIGHTS,Situation of Human Rights inthe Democratic People’s Republic of Korea,UN Doc. A/60/306 (Aug. 29, 2005).620Id.at p. 2.621Id.at��16-17. Various United Nations agencies, including the WFP, UNICEF, FAO, andUNDP have worked for years to alleviate the effects of the North Korean famine and the ongoingchallenges of food insecurity in North Korea. From 1995 to 2005, for example, the WFPprovided over $1.7 billion in food aid to North Korea. For more information about the UnitedNations involvement in alleviating hunger in North Korea,seesupra Section II.A.1.622COMM’N ONHUMANRIGHTSRES. 2005/11,�1, UN Doc. E/CN.4/2005/L.10/Add.9(Apr. 14, 2005).623See id.at�2.624See id.at�13.625SPECIALRAPPORTEURFOR THECOMM’N ONHUMANRIGHTS,Question of the Violation ofHuman Rights and Fundamental Freedoms in Any Part of the World, Situation of Human Rights inthe Democratic People’s Republic of Korea,UN Doc. E/CN.4/2006/35 (Jan. 23, 2006).626See id.at�38.619

recognition of human rights and substantive implementation of human rightsin the country.”627He went on to explain that “the situation in the countryprovides a continuing cause of concern – there are still many transgressionsand discrepancies of an egregious nature which require effective redress.”628The Special Rapporteur issued his fourth report on September 27, 2006,stating that human rights abuses in North Korea remained “rampant” and thatthe North Korean government had been “uncooperative” with respect to hiscommunications with them.629The General Assembly acted on the request made by the Commission onHuman Rights in Resolution 2005/11 and adopted its own resolutionconcerning the human rights situation in North Korea630, expressing the body’s“serious concern” about the North Korean government’s refusal to recognizethe mandate of the Special Rapporteur and about the “reports of systematic,widespread, and grave violations of human rights” in North Korea.631TheGeneral Assembly urged the North Korean government to extend fullcooperation to the Special Rapporteur and to allow humanitarian organizationsfull access to the country to ensure that humanitarian assistance was beingdelivered to those in need.632To date, however, the North Korean governmenthas not agreed to engage in discussions with any UN body regarding humanrights issues.e. UN Security Council Action on North KoreaRegarding security questions apart from the human rights and humanitarianconcerns that are the focus of this report, it is important to note that the UNSecurity Council recently adopted a resolution on the security threat posed byNorth Korea.633On July 4, 2006, North Korea launched seven long-rangemissiles, violating a prior commitment to refrain from further missile tests.634In response to this missile test, the Security Council met in emergency session.After two weeks of discussions, the Security Council adopted Resolution1695, which expressed “grave concern at the launch of ballistic missiles” byNorth Korea breaking the country’s pledge to maintain a moratorium onmissile launches.635The Resolution noted that the North Korean missile

launch was capable of delivering nuclear, chemical, or biological payloads.636The Security Council condemned North Korea’s announcement that it hadwithdrawn from the NPT and urged North Korea to “return immediately tothe Six-Party Talks without precondition.”637After North Korea’s announcement of its intent to test a nuclear weapon,the Security Council adopted a non-binding Presidential statement urging NorthKorea to refrain from conducting a nuclear test.638Nevertheless, North Koreadetonated a nuclear device on October 9, 2006 and shortly thereafter the UNSecurity Council adopted Resolution 1518 imposing sanctions on the country.639Despite the numerous and escalating attempts to engage North Korea in adialogue regarding its human rights violations, North Korea has steadfastlyrefused all efforts made by the various UN bodies. For this reason, a SecurityCouncil resolution is needed to bring increased pressure on North Korea toend the human rights abuses taking place within the country.3. South Korea: Development of the Sunshine PolicyFrom 1948 to 1970, South Korea’s policy toward North Korea was one ofabsolute disengagement.640Refusing to acknowledge North Korea’s veryexistence, South Korea maintained that it was the only legitimate governmenton the Korean Peninsula.641South Korea’s hard-line stance toward the Northshowed its first signs of softening on the 25th anniversary of Korea’s liberationfrom Japan.642In his August 15, 1970, speech commemorating the occasion,South Korean President Park Chung-hee advocated for North Korea to pursuesocioeconomic competition rather than military aggression and indicated forthe first time a willingness for South Korea to peacefully coexist with theNorth.643President Park’s speech led to talks between the two Koreas,resulting in the momentous North-South Joint Communiqué of July 4, 1972(Joint Communiqué).644The Joint Communiqué states that Seoul and Pyongyang “had an open-hearted exchange of opinions with the common desire to achieve the peacefulreunification of the country at the earliest possible date . . . .”645The documentFor more information on North Korea’s nuclear, chemical, and biological weapons program andits development of delivery systems,see supraSection II.B.1.637S.C. RES. 1695,supranote 633.638See UN Council Presses North Korea to Drop Plans for Nuclear Test, supranote 469.639See N. Korea Conducts Nuclear Weapons Test, supranote 470; S.C. RES. 1518.640SeeNORMAND. LEVIN& YONG-SUPHAN, SUNSHINE INKOREA: THESOUTHKOREANDEBATEOVERPOLICIESTOWARDNORTHKOREA5 (Rand Center for Asia-Pacific Policy, 2002).641See id.642See id.at 6.643See id.644See id.; see alsoNorth-South Joint Communiqué,available athttp://www.nautilus.org/DPRKBriefingBook/agreements/CanKor_VTK_1972_07_04_north_south_joint_communique.pdf.645Id.636

also outlines three principles of reunification:Firstly, reunification should be achieved independently,without reliance upon outside force or its interference;Secondly, reunification should be achieved by peacefulmeans, without recourse to the use of arms against theother side; [and]Thirdly, great national unity should be promoted first ofall as one nation, transcending the differences of ideology,ideal and system.646Significantly, the Joint Communiqué also states that “[t]he two sides agreedupon realizing versatile interchange in various fields between the north and thesouth to restore the national ties now severed, promote mutual understandingand accelerate independent peaceful reunification.”647In the years followingthe Joint Communiqué, South Korean presidents drafted several policystatements in the spirit of the Joint Communiqué that ultimately evolved intothe “Sunshine Policy.”648The term “Sunshine Policy” appears to have been first articulated in aSeptember 30, 1994, speech by Kim Dae-jung to the Heritage Foundation inWashington, DC, prior to his election as president. Kim stated “Americamust be patient [in its dealings with North Korea] and stick to the ‘SunshinePolicy’ which proved to be the only effective way to deal with isolated countrieslike North Korea.”649Kim cited a popular Aesop’s fable, “The Wind and theSun,” in which the Sun and the Wind engaged in a contest to see who couldstrip a traveler of his cloak.650The Wind tried first, but the harder he blew,the more closely the man wrapped the cloak around himself.651When theSun’s turn came, he warmed the traveler with his rays, prompting the travelerto voluntarily remove his cloak.652The moral of the story is “persuasion isbetter than force.”653While Kim’s original articulation of the policy wasseemingly directed toward the United States and its dealings with NorthId.Id.648These policy documents include the following: (1) President Park’s June 23, 1973, “SpecialForeign Policy Statement Regarding Peace and Unification”; (2) Chung Doo-hwan’s 1982 “NewYear Policy Statement”; (3) Roh Tae-woo’s July 1988, “Special Presidential Declaration”; and (4)the December 1991 “Agreement on Reconciliation, Non-Aggression, and Exchanges andCooperation between the South and the North.” LEVIN& HAN,supranote 640, at 7-9.649Moon Chung-in,The Sunshine Policy and Northeast Asia Regional Order: A South KoreanPerspective2,inTHEFUTURE OFNORTHKOREA(Tsuneo Akaha ed., Routledge 2002).650Id.; see alsoAESOP, THECOMPLETEFABLES117-19 (Robert Temple & Olivia Temple trans.,Penguin Classics, 1998).651SeeAESOP,supranote 650, at 117-19.652See id.653Id.646647

Korea, after Kim was elected president of South Korea in 1998, he adoptedthe Sunshine Policy as South Korea’s approach to North Korea.654In an April 4, 1998, speech, President Kim stated that his Sunshine Policy“seeks to lead North Korea down a path toward peace, reform and opennessthrough reconciliation, interaction and cooperation with the South.”655Thepolicy is based on three basic tenets and two key guiding principles.656Thebasic tenets are (1) an intolerance of any armed provocation by North Korea;(2) an acknowledgment that South Korea will not attempt to absorb orundermine North Korea; and (3) a commitment by South Korea to activelyseek opportunities for cooperation and reconciliation with North Korea.657These tenets are consistent with Mr. Kim’s speech, in that they demonstrateSouth Korea’s desire to engage the North peacefully and constructively whileputting Pyongyang on notice that South Korea would defend itself if facedwith North Korean military aggression.658The first guiding principle of the Sunshine Policy is the separation ofpolitics from the economy.659This literally means that the day’s politicalenvironment should not be allowed to become an obstacle to South Koreanprivate sector trade with or investment in North Korea.660South Korea actedon this principle by simplifying procedures and relaxing regulations that werehindering trade with the North.661Kang In-duk, South Korea’s Minister ofUnification under President Kim, believed that by “promot[ing] economiccooperation with the North,” South Korea might help foster the “creat[ion] ofa national community in which such universal values of democracy and theprinciples of the market economy are respected.”662The second guiding principle of the Sunshine Policy is that the two Koreasshould interact with a spirit of reciprocity.663At the policy’s inception, it wasintended for there to be a “give and take” between the two countries.664Whilethis principle did not necessarily reflect an expectation that North Koreawould engage in equitable trade with the South, it did demonstrate a desirefor North Korea to make some efforts in exchange for Seoul providing aid toNorth Korea.665Any hopes for meaningful reciprocity, however, were quicklySeeMoon,supranote 649, at 2-3.Id.656SeeLEVIN& HAN,supranote 640, at 24.657See id.658See id.; see alsoChae Kyung-suk,The Future of the Sunshine Policy: Strategies for Survival,14EASTASIANREVIEW(No. 4, Winter 2002), at 5.659SeeLEVIN& HAN,supranote 640, at 24;see alsoChae,supranote 658, at 5.660SeeLEVIN& HAN,supranote 640, at 24;see alsoChae,supranote 658, at 5.661SeeChae,supranote 658, at 5.662LEVIN& HAN,supranote 640, at 25.663SeeChae,supranote 658, at 5.664LEVIN& HAN,supranote 640, at 25.665SeeChae,supranote 658, at 5.654655

dashed.666Just two months after Kim’s inauguration, Pyongyang labeled SouthKorea “horse traders” and suspended ties with Seoul for suggesting that NorthKorea allow a center to be established to reunite families that were separatedduring the Korean War in exchange for fertilizer assistance from the South.667This rebuff led South Korea to amend its second guiding principle in certaincircumstances to “flexible reciprocity,” a structure that was “flexible, relative,and time-differential,” allowing Pyongyang to reciprocate at an unspecifiedtime and in an undetermined fashion in the future.668This new approach onlyapplied to intergovernmental cooperation such as social infrastructuredevelopment.669Private assistance and trade and all forms of humanitarianrelief were not bound by this new principle.670Kim’s hope was that the South’sno-strings-attached economic incentives would gradually convince NorthKorea to engage the outside world.671Kim seemed to make strides toward this goal when in June 2000 NorthKorean leader Kim Jong Il and President Kim held their historic summittalks.672This meeting, coupled with his Sunshine Policy, helped President Kimearn the 2000 Nobel Peace Prize.673The summit’s success was later blighted,however, by allegations that it was bought and paid for by a secret $500million transfer to Pyongyang just days before the meeting was to take place.674Even apart from this illicit payment, South Korea’s contributions to NorthKorea have been substantial.675One estimate shows that from 1995 to 2006,South Korean governmental and private organizations have provided around6.6 trillionwon($6.9 billion) worth of aid to North Korea.676Much of thisaid has been in the form of rice and fertilizer; however, 1.37 trillionwon($1.4billion) of the relief consists of a loan by South Korea to the North for alight-water nuclear power reactor.677Critics of the Sunshine Policy argue thatthe South’s investments in and contributions to North Korea have beenunprofitable, with the North giving little in return for the South’s generosity.678

Despite this criticism, Kim Dae-jung’s successor, President Roh Moo-hyun,chose to keep the policy substantively intact when he took office in 2003.679Although President Roh gave the Sunshine Policy a new moniker, the “peaceand prosperity policy,” he has focused his energy on implementing theagreements reached under his predecessor’s administration rather thanintroducing new proposals.680For example, North and South Korea launchedthe special economic zone at Kaeseong on June 6, 2003. The zone, located ona nearly barren piece of land just north of the DMZ, is designed to combinemanagement expertise and technology from the South with cheap labor fromthe North.681There are currently 15 factories in the zone with 500 SouthKorean managers, 7,000 North Korean workers, and their respective families.682By 2012, when the economic zone is completed, it is supposed to house 2,000companies and 700,000 North Korean workers.One change that had previously been made to the Sunshine Policy, however,is the relaxation of the South’s intolerance of any armed provocation by NorthKorea. After North Korea conducted a July 2006 missile test, which includeda missile believed capable of reaching Alaska, South Korea threatened to haltits aid shipments to the North.683But on September 8, 2006, President Rohdismissed the tests as being “aimed at achieving political purposes rather thanposing military threats.”684Accordingly, South Korea’s Prime Minister, HanMyeong-sook, indicated that South Korea would continue supplying aid toPyongyang, notwithstanding the tests.685Similarly, the tests seemed to havehad little effect at Kaeseong Industrial Park, where exports increased from$1.6 to $1.9 million from June to July 2006.686That said, it is unlikely theSunshine Policy will remain intact after North Korea’s nuclear weapons test.

(2) to promote a more durable humanitarian solutionto the plight of North Korean refugees;(3) to promote increased monitoring, access andtransparency in the provision of humanitarianassistance inside North Korea;(4) to promote the free flow of information into andout of North Korea; and(5) to promote progress toward the peaceful reunificationof the Korean peninsula under a democratic systemof government.688Among its findings, the NK Human Rights Act states that “the Governmentof North Korea is ‘a dictatorship under the absolute rule of Kim Jong Il’ thatcontinues to commit numerous, serious human rights abuses.”689The Actnotes that public and private religious activities are repressed severely, and thatmillions of North Korea’s citizens are estimated to have starved to death sincethe early 1990s.690The Act also found that, in addition to infringing therights of its own citizens, North Korea has been responsible for abductingnumerous citizens of South Korea and Japan, whose condition and whereaboutsremain unknown.691The NK Human Rights Act has three primary sections. First, Title Iaddresses promoting the human rights of North Koreans as a key element infuture negotiations between the United States, North Korea, and other concernedparties in Northeast Asia.692In addition, Title I sets forth a framework forfinancial support programs that promote human rights, radio broadcasting to

22 U.S.C. §7802 (2004).22 U.S.C. §7801 (2004) (setting forth a long list of known human rights violations andabuses, including but not limited to: strict governmental control of all information, artisticexpression, academic works, and media activity; systematic and intensive political and ideologicalindoctrination of citizens in support of the cult of personality glorifying Kim Jong Il and the lateKim Il Sung; categorization of population based on perceived loyalty to the leadership, whichdetermines access to food, employment, higher education, place of residence, and medical facilities;a draconian Penal Code stipulating capital punishment for a wide variety of “crimes against therevolution”; and an estimated 200,000 political prisoners held in camps imposing forced labor,beatings, human testing of chemical and biological poisons, forced abortions, infanticide, torture,and executions; and in which many prisoners die from disease, starvation, and exposure.).690See id.691See id.692See22 U.S.C. §§ 7811-7817.688689

North Korea, actions to promote freedom of information, and recognition ofthe UN Commission on Human Rights.693Title I also establishes a SpecialEnvoy on Human Rights in North Korea to be appointed by the Presidentand to report to Congress annually on human rights efforts and activitiesrelated to North Korea.694Title II of the NK Human Rights Act established the framework forassisting North Koreans in need, both inside and outside North Korea.695Notably, the Act requires that “significant increases above current levels ofUnited States support for humanitarian assistance provided inside NorthKorea should be conditioned upon substantial improvements in transparency,monitoring, and access to vulnerable populations throughout North Korea.”696Moreover, non-humanitarian assistance to North Korea “shall be contingenton North Korea’s substantial progress” on specific human rights issues, including(a) basic human rights for the North Korean people, including freedom ofreligion; (b) family reunification between North Koreans and theirdescendants and relatives in the United States; (c) full disclosure of allinformation regarding Japanese and South Korean citizens abducted by NorthKorea; (d) allowing such abductees, along with their families, complete andgenuine freedom to leave North Korea and return to the abductees’ originalhome countries; (e) reforming the North Korean prison and labor campsystem, including independent international monitoring; and (f ) decriminalizingpolitical expression and activity.697Finally, Title III of the NK Human Rights Act provides a framework forprotecting North Korean refugees.698Title III, among other things, requires aone-time assessment of the situation in North Korea and the United States’policies related to North Korean refugees and asylum seekers in the UnitedStates.699Title III also calls for increased levels of humanitarian assistance forNorth Koreans inside China – if China fulfills its obligations to the UN HighCommissioner for Refugees by providing unimpeded access to North Koreansinside China’s borders.700See22 U.S.C. §§7812, 7813, 7814, 7815, and 7816. The Act authorizes $2 million for eachof the fiscal years 2005 – 2008 to support programs by private, nonprofit organizations to promotehuman rights, democracy, rule of law, and a market economy in North Korea.See22 U.S.C.§ 7812. This money, however, was not appropriated in FY05 or FY06. The Act also authorizes$2 million for each of the fiscal years 2005–2008 to increase the availability of non-government-controlled sources of information to North Koreans.See22 U.S.C. § 7814.694See22 U.S.C. § 7817.695See22 U.S.C. §§ 7831-7833. The U.S. State Department and USAID are to report annually toCongress for three years regarding (1) U.S. humanitarian assistance to North Koreans, (2) anyimprovements in humanitarian transparency and monitoring inside North Korea, and (3) specificefforts by the United States and U.S. grantees to secure better monitoring and access. 22 U.S.C. §7831.696See22 U.S.C. §7832; Manyin,supranote 204, at 3.697See id.69822 U.S.C. §§7841-7845.69922 U.S.C. §7842.70022 U.S.C. §7844.693

III. North Korea and the UN Security CouncilA. Violation of the Responsibility to ProtectThe Security Council has declared that it has the responsibility to takeaction on a case-by-case basis should national authorities in a country fail toprotect its own citizens from genocide, war crimes, ethnic cleansing, andcrimes against humanity.704This report invokes the responsibility to protectdoctrine to assert that the government of North Korea’s systematic starvingportions of its population, and its operation of a gulag system detaining over200,000 prisoners constitutes the North Korean government’s failure to protectits own citizens from crimes against humanity. Furthermore, the NorthKorean government has patently refused to address repeated concerns raisedby the international community through the UN General Assembly, formerCommission on Human Rights, and Special Rapporteur on Human Rights inNorth Korea. Therefore, it is now the UN Security Council’s responsibility totake action to protect the North Korean people.The Security Council’s endorsement of the “responsibility to protect”doctrine705followed the statement made by the 2005 World Summit of theUN General Assembly. At that time, the General Assembly stated:Each individual state has the responsibility to protect itspopulation from genocide, war crimes, ethnic cleansing andcrimes against humanity . . . We accept that responsibilityand will act in accordance with it . . . We are prepared totake collective action in a timely and decisive manner,

through the Security Council . . . should . . . nationalauthorities manifestly fail to protect their populations.706In sum, the responsibility to protect doctrine entails four key elements:• Primary responsibility for protecting a state’s population from these mostegregious of human rights abuses resides with that country’s government;• The international community has a duty to help states in meeting thisresponsibility;• When a state manifestly fails in its obligation to protect its own citizens,it is the international community’s responsibility to help protect thatpopulation; and• If multilateral action through the UN and regional entities fail to addressthe problem, it is the Security Council’s responsibility to intervene.707Today a comprehensive definition of crimes against humanity only emergesfrom various statutory definitions and the jurisprudence of the internationaltribunals for Rwanda and the former Yugoslavia.708As a result, the parametersof the definition under customary international law remain imprecise and aredetermined by each statutory definition and each international tribunal.Notwithstanding this imprecision, to bring a claim of crimes againsthumanity709, the following elements must be satisfied under customaryinternational law to elevate an ordinary crime to an international crime:1.2.3.There must be an attack;The acts of the accused must be part of the attack;The attack must be directed against any civilian population;

2005 World Summit Outcome,UN GENERALASSEMBLY, Sept. 15, 2005, at�138 [hereinafter2005 World Summit Outcome].707See, e.g.,William R. Pace & Nicole Deller,Preventing Future Genocides: An InternationalResponsibility to Protect,WORLDORDER(Vol. 36, No. 4, 2005),citingUNITEDNATIONS,Secretary-General’s High-Level Panel on Threats, Challenges and Change,A More Secure World:Our Shared Responsibility,Dec. 2, 2004, at��29, 201 [hereinafter High-Level Panel].708SeeAppendix III (providing a complete explanation of the evolution of crimes against humanityand a discussion of the current understanding of the crime from the jurisprudence of theinternational tribunals and Rome Statute’s definition).709There has never been an international tribunal with jurisdiction for adjudicating state responsibilityfor the commission of crimes against humanity. As a result, one must transpose the jurisprudenceabout crimes against humanity of the international tribunals as applied to individuals to determineif the government of North Korea is responsible for the commission of crimes against humanity.706

The “attack” requirement must be understood as a contextual element,rather than as the term is commonly understood.712Originally, the LondonCharter required a nexus with an armed conflict, but this requirement nolonger exists; today crimes against humanity may be committed in peacetimeor during war.713Therefore, the term “attack” is defined as “a course of conductinvolving the commission of acts of violence”714and is a contextual elementcontributing to the circumstances under which a particular act could beelevated to an international crime.The number of specific acts (actusreus)that rise to crimes against humanity,when committed in the ways described above has expanded over the years.Currently, there are nine specific acts falling within the customary internationallaw definition of crimes against humanity: murder; extermination; enslavement;deportation; imprisonment; torture; rape; persecutions on political, racial, orreligious grounds; and other inhumane acts intentionally causing great suffering,or serious injury to body or to mental or physical health. Each of these termsis defined in the jurisprudence of the international tribunals and the Rome

Professor William Schabas has written extensively about the knowledge required to meet thedefinition of crimes against humanity under customary international law:Although it is axiomatic that the offender must commit the crime withintent, that is, with themens reaparticular to the offense, rarely is thereany direct evidence of this element of the crime. In effect, there is anevidentiary presumption that persons who commit acts or omissions do sointentionally, absent indications to the contrary. Thus, it is for theaccused person to demonstrate that he or she did not actually intend tocommit the act in question. As a general rule, this takes the form of anexcuse, such as insanity, intoxication, or duress (emphasis added).WILLIAMA. SCHABAS, THEUN INTERNATIONALCRIMINALTRIBUNALS(Cambridge UniversityPress, 2006), at 295.711Prosecutor v. Kunarac, Kovac, and Vukovic(Case No. IT-96-23-A & IT-96-23/1-A), Judgment,Jun. 12, 2002, at�85;Prosecutor v. Krnojelac,(Case No. IT-97-25-T), Judgment, Mar. 15, 2002, at�53;Prosecutor v. Bisengimana,(Case No. ICTR-00-60-T), Judgment, Apr. 13, 2006, at��41-57.712SeeMohamed Elewa Badar,From the Nuremberg Charter to the Rome Statute: Defining theElements of Crimes Against Humanity,5 SANDIEGOINT’LL. J. 105 (2004).713See Prosecutor v. Tadic(Case No. IT-94-1-A), Judgment, Jul. 15, 1999,at 251.714See Krnojelac,Judgment (TC),supranote 711, at�54.710

1. Food Policy and FamineWhile the acute famine of the mid-1990s has passed, the food emergencyin North Korea continues – Human Rights Watch recently warned that NorthKorea is again on the brink of famine.716Indeed, it is estimated that of thepopulation of 22 million, 57 percent of the people do not have enough foodto keep healthy; 36 percent of the people are undernourished; and 30 percentof children under 6 suffer from chronic malnutrition.717Perhaps the bestexample of the malnutrition’s impact is that, in 2003, the KPA had to reduceits height requirement for draftees from five feet, eleven inches (150 cm) tallto five feet, two inches (125 cm) tall.718North Korea’s disastrous food policy includes both intentional and negligentconduct. It is intentional conduct on such a wide and long-term basis thatconstitutes extermination719and other inhumane acts that collectively arecrimes against humanity. Specific examples of North Korea’s intentionalconduct include:

“Extermination” includes the infliction of conditions of life,inter aliathe deprivation of accessto food and medicine, calculated to bring about the destruction of part of a population;“Enslavement” means the exercise of any or all of the powers attaching to the right of ownershipover a person and includes the exercise of such power in the course of trafficking in the persons,in particular women and children; “Deportation [or forcible transfer of population]” means forceddisplacement of the persons concerned by expulsion or other coercive acts from the area in whichthey are lawfully present, without grounds permitted under international law; (bracketed section isunique to Rome Statute, and is not part of customary international law); “Torture” means theintentional infliction of severe pain or suffering, whether physical or mental, upon a person in thecustody or under the control of the accused; except that torture shall not include pain or sufferingarising only from, inherent in or incidental to, lawful sanctions; “Persecution” means the intentionaland severe deprivation of fundamental rights contrary to international law by reason of theidentity of the group or collectivity.SeeROMESTATUTE OF THEINTERNATIONALCRIMINALCOURT, Jul. 17, 1998, at art. 7(2) [hereinafter ROMESTATUTE].716SeeSeok,supranote 108.717See North Korea Famine In Detail, supranote 109.718SeeNOLAND, FAMINE ANDREFORM INNORTHKOREA,supranote 105, at 10, n. 16.719One should recall that the definition of “extermination” under the Rome Statute is broaderthan the ordinary understanding of the term. Specifically, “extermination” includes the inflictionof conditions of life,inter aliathe deprivation of access to food and medicine, calculated to bringabout the destruction of part of a population.SeeROMESTATUTE,supranote 715, at art. 7(2).715

Recent History• In late 2005 and continuing through 2006, the government took a seriesof steps likely to aggravate the food crisis and threaten the populationwith the return of famine.720Observers have warned that these measures– forcing the WFP to radically reduce its food shipments and monitoring,reinstituting the PDS, and making it illegal for ordinary North Koreansto buy and sell grain – are “a recipe for disaster.”721In fact, recent newsreports suggest that North Koreans in many parts of the country werenot receiving rations six months after the authorities announced theywere reinstating the PDS fully, and that others were receiving rationsinsufficient to maintain basic health.722• Today, WFP aid workers continue to be prohibited from visiting 42 of203 counties in North Korea. When the WFP is not allowed to monitordeliveries to ensure they are not diverted, it is unwilling to provide food.As a result, North Korea is responsible for aid being denied to a substantialpart of its population.723During the Mid-1990s Famine724• Between 1995 and 1998, North Koreans suffered through a catastrophicfamine that resulted in as many as one million deaths, and possiblymany more, from starvation and hunger-related diseases.725Thisrepresented between 3 - 5 percent of the population.726• As the famine was approaching, the North Korean government failed torequest international assistance in a timely manner.727• The North Korean government ignored commonly accepted norms foraid distribution, which are designed to ensure that the aid reaches thosewho need it most.728Instead, the government pursued several policies

designed to control aid distribution, hinder effective monitoring, andcreate opportunities for control and diversion of aid for thegovernment’s purposes.729• While receiving international aid, the North Korean governmentsimultaneously reduced the amount that the regime spent on foodassistance. In other words, the government did not use the aid tosupplement the available food supply. Instead, it used the aid to reducecommercial imports and thus save revenue that could then be used forother purposes, such as WMD programs.730Even at the height of thefamine, the government demonstrated that it prioritized its military overits population’s basic needs for survival.731• Furthermore, the North Korean government criminalized many of thecoping strategies it had forced on its own population. For example, theright to free movement was heavily curtailed and regulated, preventingpeople from searching for food themselves or relocating to areas withless acute food shortages.732

For example:• The government severely limited the number of WFP and NGO workers allowed into thecountry to deliver the aid, hindering the ability of workers to assess the extent of the famine,what help was needed, and where.• The government prohibited the WFP and NGOs from using Korean speakers, and requiredthe use of government interpreters, further hindering the collection of independentinformation and assessments.• The government refused to allow international organizations, such as the WFP and NGOs, toset up independent, transparent distribution networks that could ensure the nondiscriminatorydistribution of food to all parts of the country, and to all members of society on an fairbasis, according to need. Instead, foreign aid organizations were required to use the PDSnetwork controlled by government and party officials, subjecting the aid to pressures toreallocate and redistribute it, as well as corruption and theft. The opportunities for “leakage”and diversion were significant.• Apart from hindering the fair distribution of aid, the government outright refused to allowaid to reach many counties, for reasons that are not yet understood.

From the Founding of North Korea• The imposition of thejucheideology, which advocated a spirit of self-reliance, condemned the North Korean people to hunger and famine forfive decades because only some 19 to 22 percent of the country’s land isconsidered arable.733• Further compounding this problem, the government strictly controlledfood distribution and banned private markets.734The North Koreangovernment further used its control over food distribution to rewardthose persons deemed favored by the regime and to deny food to theless privileged.735Conclusion of Sub-Section on Food Policy and FamineThere can be no more fundamental responsibility of a sovereign than toensure its citizens are adequately nourished. For over 50 years the NorthKorean government has failed to meet this universal humanitarian imperative.The circumstances that created the famine continue to exist; they are the sameproblems that have existed for decades. North Korea cannot biologically andecologically produce food in amounts sufficient to provide nutritious meals toits people and do so reliably every year, including having a reserve to weathernatural disasters.In starving and malnourishing large portions of its population – let alonehaving been complicit in the deaths of as many as one million, and possiblymore, of its own citizens – the North Korean government is committing thefollowing actions: (1) extermination; and (2) other inhumane acts.It is important to recall that the definition of “extermination” under theRome Statute includes inflicting life conditions, such as depriving access tofood and medicine, calculated to bring about the destruction of part of apopulation.736“Other inhumane acts” includes the “causing great suffering, orserious injury to body or to mental or physical health.”737The acts described in this report committed by the North Koreangovernment – such as preventing access to 42 counties for food aid monitoring,limiting and often banning private markets, controlling food distribution,inhibiting the transparent free distribution of aid, and limiting the number ofaid workers allowed in the country – are widespread and systematic actionsthat result in starving substantial segments of the population. Under customarySeeWORLDFACTBOOK,supranote 57.SeeHAGGARD& NOLAND, HUNGER ANDHUMANRIGHTS,supranote 70, at 22.735See id.736ROMESTATUTE,supranote 715, at art. 7(2).737Id.733734

2. Treatment of Political PrisonersNorth Korea has been operating prison camps since 1947.740In the 1950s,Kim Il Sung’s political opponents became the majority of the prison campinmates.741More camps were created to house Kim Il Sung’s many real andimagined political enemies and their families during the frequent purges thatcharacterized the late 1960s.742The North Korean government’s intentionaloperation of its gulag system – including imprisonment, persecution based onpolitical grounds, extermination, enslavement, and torture –constitutes crimesagainst humanity.a. ImprisonmentAn estimated 200,000 people are now imprisoned in North Korea’s variousprison camps.743It is believed that as many as 400,000 prisoners have died inthese camps over the past 30 years.744The number of political prisons orkwan-li-sohas changed over time. At one point, there were believed to be 12kwan-li-soin existence. Currently, it is believed that there are sixkwan-li-soafter several camps were closed.745This conduct constitutes “imprisonment”because in each case of North Koreans in the gulag, there is the severedeprivation of physical liberty in violation of the fundamental rules ofinternational law, namely the due process protections of the ICCPR.746b. Persecution Based on Political GroundsThe situation for political dissenters worsened in North Korea when KimJong Il began to fear that the communist collapse that swept through EasternSCHABAS,supranote 710.See supraSection II.A.1.a.740See White Paper on Human Rights, supranote 103, at 27.741See id.742See id.743SeeHAWK,supranote 215, at 24, fn. 16.744SeeCHOI,supranote 218.745SeeHAWK,supranote 215, at 26.746SeeROMESTATUTE,supranote 715, at art. 7(1)(e).738739

Europe, beginning in 1989, would spread and challenge his rule. As KimJong Il’s insecurity increased, so did the number of political prisoners housedin North Korea’s prisons.In addition to abducting the accused individual, the State SecurityDepartment also detains up to three generations of the accused’s familymembers, including the mother, father, sisters, brothers, children, andgrandchildren. This practice is believed to have begun with Kim Il Sung’s1972 proclamation “[f ]actionalists or enemies of class, whoever they are, theirseed must be eliminated through three generations.”747Like the accusedpolitical prisoner, the family members are not granted a trial. Instead, theyare picked up and transported to political prisons without being provided withany information as to when, if ever, they will be released.The practice of detaining family members of accused political dissentersconstitutes “persecution based on political grounds” because it is the “theintentional and severe deprivation of fundamental rights contrary tointernational law by reason of the identity of the group or collectivity.”748InNorth Korea, family members of political dissenters are detained, without thedue process of law guaranteed under the ICCPR, merely because of theirrelation with the accused.c. Extermination and EnslavementStarvation of PrisonersPrisoners are provided only starvation-level food rations despite the factthat they are forced to engage in long and physically demanding labor. It isthis combination that often turns the labor camps into death camps. Thepractice of starving prisoners is a mechanism intended to assist in keepingcontrol over the inmates. For example, prisoners are given strict and oftenunrealistic work quotas each day.749Failure to meet one’s quota results inreduced food rations. This threat leads prisoners to work as hard as they canto avoid food reductions. Because of insufficient food rations, diseases anddeath caused by malnutrition are common in the camps.Eyewitness accounts establish that, in one case, out of 2,000 to 3,000people in one section of one prison, 100 people died per year from malnutritionand disease, mainly from severe diarrhea leading to dehydration.750A formerprison guard reported that at Prison Camp No. 22, which housed approximately50,000 prisoners, 1,500 to 2,000 prisoners died from malnutrition each year.That same guard stated that most of those who died were children.751ToHAWK,supranote 215, at 25.ROMESTATUTE,supranote 715, at art. 7(2)(g).749SeeHAWK,supranote 215, at 9.750SeeKANG& RIGOULOT,supranote 245, at 86.751See id.at 39.747748

ensure that prisoners stayed near starvation, attempts to obtain unauthorizedfood, even weeds, were punished by beatings and execution.752As described previously, the starvation of prisoners in this mannerconstitutes “extermination” because it is the “intentional infliction of conditionsof life,inter aliathe deprivation of access to food . . . calculated to bringabout the destruction of part of a population.”753There is an evidentiary presumption under customary international lawwith regard to crimes against humanity that “persons who commit acts oromissions do so intentionally, absent indications to the contrary.”754Therefore,the widespread starvation of prisoners on itself is sufficient evidence todemonstrate that this is intentional conduct of the North Korean government.Death by LaborPrisoners, including children, are required to engage in very demandingand dangerous labor at the prison camps. Prison labor conditions in somecamps result in 20 to 25 percent of the labor force (i.e., political prisoners)being worked to death each year.755Prisoner work includes mining, timber cutting, farming, and sewing. Inaddition to prisoners dying, many prisoners end up as amputees or otherwiseare disabled in work-related accidents.756Partial amputations also are commonbecause of frostbite from working in freezing conditions with sparse clothinginadequate to protect prisoners’ extremities from the elements.757Forced labor constitutes “enslavement” because the North Koreangovernment is “exercis[ing] . . . the powers attach[ed] to the right of ownershipover a person,” namely forcing prisoners to work under appalling conditionsreduced to servile status.758d. TortureIn addition to near starvation and forced labor, the North Koreangovernment systematically uses torture to interrogate prisoners and aspunishment in the political prisons. Political prisoners are tortured when theyare first detained, in an effort to get them to “confess.”759Once placed in acamp, prisoners are further tortured as punishment. Many prisoners reportthat prison guards would engage in beatings so vicious that prisoners’ eyes maySee id.at 37;SeeHAWK,supranote 215, at 26.ROMESTATUTE,supranote 715, at art. 7(2)(b).754SCHABAS,supranote 710.755SeeWindrem,supranote 97.756SeeHAWK,supranote 215, at 25.757See id.758ROMESTATUTE,supranote 715, at art. 7(2)(c).759SeeHAWK,supranote 215, at 59.752753

fall out or leg bones may be exposed.760Prisoners are also placed in solitaryconfinement in very small enclosures. A harsher variation of solitaryconfinement involves a “sweat box,” a prison cell so small that a personcannot fully stand or lie down within it. A prisoner sealed in a sweatbox isnot allowed to move and is given almost no food, surviving only by eatingbugs that crawl through the box.761Prisoners often suffer frostbite and theirbodies become covered with sores.762This conduct constitutes torture because it is the “intentional infliction ofsevere pain or suffering, whether physical or mental, upon . . . person[s] in thecustody” of the North Korean government.763Conclusion of Sub-Section on Treatment of Political PrisonersIn unjustly imprisoning over 200,000 of its own citizens in inhumaneconditions – let alone having caused 400,000 others to die – the NorthKorean government is committing the following actions: (1) imprisonment;(2) persecution on political grounds; (3) extermination; (4) enslavement; and(5) torture. The North Korean government is committing these acts knowingly(noting the presumption of knowledge under customary international lawrelated to crimes against humanity), against civilians, and in a widespread andsystematic fashion. As a result, not only do these acts clearly violate NorthKorea’s obligations under the ICCPR764, but the North Korean government’songoing operation of the gulag system itself constitutes crimes against humanity.Invocation of Responsibility to Protect DoctrineAs described in this report, North Korea is systematically starving portionsof its population and operating a gulag system with over 200,000 prisoners.The acts constitute the government’s failure to protect its own citizens fromcrimes against humanity.Furthermore, the North Korea government has patently refused to addressrepeated concerns raised by the international community through the UNGeneral Assembly, former Commission on Human Rights, and the SpecialRapporteur.765Therefore, it is now the responsibility of the UN SecurityCouncil to take action to protect the people of North Korea.

B. “Non-Traditional” Threat to the PeaceThe North Korean government’s violation of its responsibility to protect itsown citizens from crimes against humanity creates a need for Security Councilintervention. An equally compelling reason for intervention is that thesituation in North Korea constitutes a non-traditional threat to the peace.Chapter VI of the UN Charter describes the role the UN Security Councilmay play in a country-specific situation that could endanger the maintenanceof international peace and security. The Security Council “may investigate . . .any situation which might lead to international friction . . . to determinewhether the continuance of the . . . situation is likely to endanger themaintenance of international peace and security.”766Any member of theUnited Nations “may bring . . . any situation of the nature referred to inArticle 34, to the attention of the Security Council . . . .”767Subsequently,having examined the situation, the Security Council “may, at any stage . . . ofa situation of like nature, recommend appropriate procedures or methods ofadjustment.”768Recommendations made under Chapter VI are non-binding.769Nevertheless, the adoption of such a resolution by the Security Council wouldsend a clear message to the North Korean government that the UN is nolonger willing to tolerate one of its own members ignoring resolutions of theGeneral Assembly, the former Commission on Human Rights, and the SpecialRapporteur. If the North Korean government should fail to engage with theUnited Nations after such a resolution is adopted, the Security Council thenmay decide to proceed to a resolution under Chapter VII, binding underinternational law on all members of the UN.770Appendix IV sets forth a list of determining factors evaluated by theSecurity Council in justifying itsinitialresolutions where the Council found amore serious “threat to the peace” existed under Chapter VII of the UNCharter. Applying these determining factors to the situation in North Koreademonstrates that it actually represents a threat to the peace – not just aUN CHARTER, art. 34.UN CHARTER, art. 35(1).768UN CHARTER, art. 36(1).769It is generally accepted that recommendations made under this chapter are not binding on UNmembers.See, e.g.,Stefan Talmon,The Security Council as World Legislature,AM. J. INT’LL., Vol.99. Jan. 2005, at 175 (discussing the limit of decisions made under Chapter VII to those that arebinding citingProsecutor v. Tadic,Appeal on Jurisdiction, No. IT-94-1-AR72,�44, Oct. 2, 1995);But seeBAILEY& DAWS,supranote 809, at 268 (discussing International Court of Justice AdvisoryOpinion inNamibiacase from Jun. 21, 1971).770SeeKurt Herndl,Reflections on the Role, Functions and Procedures of the Security Council of theUnited Nations, in RECUEILDESCOURS: COLLECTED COURSES OFTHEHAGUEACADEMY OFINTERNATIONALLAW323 (Martinus Nijhoff Publishers, 1997);see also Legal Consequences forStates of the Continued Presence of South Africa in Namibia (South-West Africa) NotwithstandingSecurity Council Resolution 276 (1970),1971 I.C.J. 16, 52 (Advisory Opinion of Jun. 21).766767

situation that might lead to international friction – and that Security Councilaction is both justified and warranted.In the case of North Korea, three of these five determining factors havebeen met. Satisfying three of five factors was sufficient to justify SecurityCouncil involvement in five of the seven case studies we examined inAppendix IV, including the situations in Haiti, Yemen, Rwanda, Liberia, andCambodia.As the situation in North Korea meets the criteria for the Security Councilto potentially intervene under its Chapter VII powers, it therefore meets thelower standard for intervention under Chapter VI.Application of Determining Factors to Situation in North KoreaHuman./Human RightsViolationsNorth KoreaRefugeeOutflowsOther (DrugTrafficking,Counterfeiting)ConflictamongFactions

1. Widespread Internal Humanitarian/Human Rights ViolationsSecurity Council resolutions generally cite gross human rights violations insituations of conflict. Severe human rights violations have been an importantfactor considered by the Security Council, whether the abuses are perpetratedby the ruling regime, as in Haiti, Sierra Leone, and Afghanistan, or whetherthey are occurring due to conflict and are being committed by insurgentparties, as in Yemen, Liberia, and Rwanda.In the cases discussed in Appendix IV, there is no question that theSecurity Council acted in part from concern for those countries’ civilianpopulations, hoping to protect those people from further suffering. TheSecurity Council has repeatedly demonstrated its commitment to preventgross human rights violations even when the human rights violations haveoccurred wholly within a country itself. This is because especially severe andsystematic human rights abuses create general instability and result in refugeeflows to neighboring countries, thus threatening regional peace and security.According to the most recent Resolution adopted by the formerCommission on Human Rights, “systemic, widespread and grave violations” ofhuman rights in North Korea reportedly include:(a) Torture and other cruel, inhuman or degrading treatmentor punishment, public executions, extrajudicial and arbitrarydetention, the absence of due process and the rule of law,imposition of the death penalty for political reasons, the95

existence of a large number of prison camps and theextensive use of forced labour;(b) Sanctions on citizens of the Democratic People’sRepublic of Korea who have been repatriated from abroad,such as treating their departure as treason leading topunishments by internment, torture, inhuman or degradingtreatment, or the death penalty;(c) All-pervasive and severe restrictions on the freedoms ofthought, conscience, religion, opinion and expression,peaceful assembly and association and on access of everyoneto information, and limitations imposed on every personwho wishes to move freely within the country and travelabroad;(d) Continued violation of the human rights andfundamental freedoms of women, in particular thetrafficking of women for prostitution or forced marriage,ethnically motivated forced abortions, including by labour-inducing injection or natural delivery, as well as infanticideof children of repatriated mothers, including in policedetention centres and labour training camps. . . .771Although information on the situation in North Korea is often hard toobtain, the combination of both the severity of the abuses in North Korea andthe length of time these violations have persisted leads to an inevitableconclusion: compared to many countries where the Security Council has takenaction in the past, the situation in North Korea is more grave. The mostdisturbing features of the situation in North Korea have already been examinedin detail in this report.

Refugee statistics for cases presented in Appendix IV at the time of SecurityCouncil action (excluding Yemen, which had minimal flows) were:•Afghanistan– approximately two million refugees fled to neighboringcountries.774•Liberia– some 750,000 refugees fled to Guinea, Côte d’Ivoire, andSierra Leone.775•Sierra Leone– approximately 361,000 refugees sought refuge in SierraLeone’s neighboring countries, primarily in the Republic of Guineaand Liberia.776•Rwanda– approximately 300,000 refugees fled to neighboring countries.777•Cambodia– 300,000 refugees fled to three major camps in Thailand.778•Haiti– approximately 40,000 refugees fled to Cuba and theDominican Republic.779North Korea fits well within the ranges that justified previous SecurityCouncil actions. Today there are as many as 30,000 to 100,000 NorthKorean refugees living in neighboring countries.780During the peak of refugeeoutflow in the 1990s, the number of North Korean defectors was estimated atbetween 100,000 and 400,000.781

3. Other Cross-Border ProblemsDrug TraffickingTo compensate for the trade deficit and to fund other major governmentexpenditures for the military and its WMD programs, North Korea hasincreased its production and trafficking of illegal narcotics. It is estimated thatSituation of Human Rights in Afghanistan 1975/74,Commission on Human Rights, UnitedNations, chap. XII. E/CN.4/1995/176, Mar. 8, 1995.775Foday Fofanah,Stranded Liberian Refugees Head for Home,REUTERS, Mar. 30, 1992.776Id.; see alsoUN Doc. S/PV.3797 (1997) (stating that refugees also had fled to Ghana, Nigeria,Côte d’Ivoire, Gambia, and other countries in the subregion).777Populations of Concern to UNCHR: A Statistical Overview,Office of the United Nations HighCommissioner for Refugees, 1994. Note, we are examining refugee flows before the genocidebecause this was the relevant point of reference when the Security Council first decided to getinvolved.778Cambodians Won’t be Forced to Return,BANGKOKPOST, Mar. 8, 1990;see alsoElizabeth Pisani,Cambodian Refugees Kept in Limbo in Effort to Keep Numbers Low,REUTERS, Nov. 7, 1990 (citing2,000 Cambodian refugees in camps in Indonesia).779SeeUN Doc. S/PV.3238 (1993);see alsoUN Doc. S/25942 (1993).780SeeLEE,supranote 471.781See id.774

North Korea earns between $500 million to $1 billion per year from theseactivities.782Little doubt exists that drug trafficking has a tremendous negative effect oninternational stability. In fact, when the Security Council adopted Resolution1076 regarding the situation in Afghanistan, it made specific note regardingits concern over opium trafficking in the region, stating that the conflict inAfghanistan “provides fertile ground for . . . drug trafficking which destabilizesthe region and beyond.”783This statement is also applicable to North Korea.Japanese drug officials report that 43 percent of all illegal drugs importedto Japan come from North Korea784, and Taiwanese police and prosecutorsreport an increase in the number of drugs flowing from North Korea toTaiwan, primarily heroin.785Further, North Korean diplomats have a longhistory of dealing in contraband. Almost all the members of North Korea’sdiplomatic corps in Scandinavia were expelled in 1976 for running asmuggling operation for alcohol and cigarettes through Norway, Denmark,and Finland.786Since that incident, more than 20 North Korean diplomats,agents, and trade officials have been implicated in illicit drug operations inmore than 12 countries, including Egypt, Venezuela, India, Germany, Nepal,Sweden, Zambia, Ethiopia, and Laos.787In addition, since 1976, NorthKorea has been linked to over 50 incidents involving drug seizures in at least20 countries.788Overall, the United States estimates that North Korea has approximately10,000 to 17,000 acres of land under poppy cultivation – enough to harvest30 to 44 tons of opium and manufacture 4.5 tons of heroin per year.789Further, North Korea also produces methamphetamines for export with aproduction capacity of 10 to 15 tons per year.790It is likely that North Korea’s drug production and trafficking activity willcontinue as long as there is a significant gap between its consumption of rawand processed materials and the government’s ability to purchase or producethose materials.Money Counterfeiting and LaunderingTo fund its trade deficit and purchase imports, North Korea has built upan extensive counterfeiting and money laundering operation. The UnitedSee Heroin Busts Point to Source of Funds for North Koreans, supranote 506.S.C. RES. 1076, S/Res/1076 (1996).784SeeHWANG,supranote 528, at 4.785SeeSolomon & Dean,supranote 525.786See id.787SeeSpaeth,supranote 526.788SeePerl,supranote 510, at 6.789SeeHURST,supranote 505, at 5;see alsoPerl,supranote 510, at 9.790SeeHURST,supranote 505, at 9-11.782783

States has determined that a definite connection exists between the NorthKorean government and the high-quality, counterfeit $100 bills commonlyknown as “supernotes.”791It is estimated that North Korea has produced morethan $45 million in supernotes since 1989, with a current yearly productionrange between $3 million and $25 million per year.792Much of this counterfeitcurrency is laundered outside of North Korea. For example, a North Koreandiplomat was arrested in Belgrade for passing supernotes793, and in 2005 theUnited States halted transactions between US financial institutions and BancoDelta Asia in Macau on suspicion that the bank was involved with the NorthKorean government in both counterfeiting and laundering approximately $24million in US currency.794While the Security Council has not previously considered counterfeitingand money laundering in a Chapter VII analysis, the international communityhas a long history of addressing these issues. The International Conventionfor the Suppression of Counterfeiting Currency and Protocol was signed bymembers of the League of Nations on April 20, 1929, and came into force onFebruary 22, 1931.795The Convention remains the operative document oncounterfeiting, with approximately 80 countries ratifying, acceding to, orsucceeding to the Convention.796The Convention establishes national officesin signatory countries to address the issue of counterfeiting and also discussescounterfeiting across borders.797While North Korea is not a signatory to thistreaty, the Convention’s existence is itself evidence of broad internationalconcern about the impact of counterfeiting and money laundering.The international community has similarly made efforts to combat moneylaundering, especially in the wake of the September 11, 2001, terrorist attacks.The Financial Action Task Force, an organization established in 1989 at theG-7 Summit and comprised of 33 members, is responsible for establishinguniversal anti-money laundering standards.798Additionally, the UN Office onDrugs and Crime is addressing the issue through a global program againstmoney laundering.799

SeePerl & Nanto,supranote 540.See id.793SeeGertz,supranote 554.794SeePress Release,supranote 557; Guha,supranote 558.795Apr. 20, 1929, 112 L.N.T.S. 371.796The most recent to accede to the treaty was Slovenia on May 9, 2006.797SeeINTERNATIONALCONVENTION FOR THE SUPPRESSION OFCOUNTERFEITINGCURRENCY,supranote 795, at art. 3 (describing punishable crimes), art. 8 (discussing extradition), and art. 12(calling for the establishment of central offices in each signatory state).798See Fact Sheet - The IMF and the Fight Against Money Laundering and the Financing of Terrorism(International Monetary Fund),available athttp:/www.imf.org.799SeeUnited Nations, Global Program Against Money Laundering,available athttp://www.unodc.org/unodc/en/money_laundering.html.791792

RecommendationsInitially, the UN Security Council should adopt a non-punitive resolutionon the situation in North Korea in accordance with its authority underChapter VI of the UN Charter and past Security Council precedents.The resolution should:• Outline the major reasons for the Security Council intervention,focusing on the North Korean government’s failure to protect its ownpeople and the threat to international peace and security caused by themajor issues described in this report;• Urge the North Korean government to ensure the immediate, safe, andunhindered access to all parts of the country for the United Nations andinternational organizations to provide humanitarian assistance to themost vulnerable groups of the population;• Call on the North Korean government to release all political prisonersdetained in violation of their rights under the International Covenanton Civil and Political Rights, to which North Korea is a state party;• Insist the North Korean government allow the UN Special Rapporteuron Human Rights in North Korea to visit the country; and• Request the Secretary-General to remain vigorously engaged in thesituation in North Korea and that he report back to the SecurityCouncil on a regular basis.Should North Korea fail to comply with a Chapter VI resolution, theSecurity Council should consider adopting a binding resolution underChapter VII.

Appendix I: Background, Duties, and Operations ofUN Security CouncilWith maintaining peace and security between nations as its mission, theUN Security Council plays a key role in achieving the United Nations’ largergoals of preventing war, upholding human rights, and promoting internationalpolitical stability.800When carrying out its critical duty of maintaining peaceand security, the Security Council possesses unparalleled authority to makedecisions that may bind both members and non-members of the UN.801Withthis power to harness the political will of the international community and tochannel such determinations toward real change, the Security Council isperhaps the most important organization working for international peace andsecurity in modern times. This Appendix provides a concise introduction tothe Security Council’s structure, duties, and procedures, which is theframework within which the Security Council should act with respect to thesituation in North Korea.

A. Security Council Overview8021. CompositionAs provided in Article 23 of the UN Charter, the Security Council iscomposed of 15 members of the United Nations.803The five permanentSecurity Council members – the People’s Republic of China, France, theRussian Federation, the United Kingdom, and the United States of America –are joined by ten members elected by the General Assembly for two-yearterms, five of which are replaced each year.804The selection of SecurityCouncil members is based not only on geographic representation but also onthe significant responsibility of maintaining peace and security, a taskdesignated to each member of the Security Council.805The current non-permanent members for 2005-2006 are Argentina, Denmark, Greece, Japan,and Tanzania. The non-permanent members for 2006-2007 are Ghana, Peru,

SeeUN CHARTER, preamble; UN CHARTER, art. 4(1).SeeUN CHARTER, art. 2(5); art. 25; and art. 49 (binding members);see alsoUN CHARTERart.2(6) (binding non-members to Charter principles “so far as may be necessary for the maintenanceof international peace and security.”) It is important to note this obligation is explicitly reinforcedwith regard to the finding of a “threat to the peace, breach of the peace, or act of aggression” inwhich “[t]he Members of the United Nations shall join in affording mutual assistance in carryingout the measures decided upon by the Security Council.” UN CHARTER, art. 49. By contrast, theUN General Assembly can only recommend action.802See generally,UN CHARTER, Chapter V.803UN CHARTER, art. 23(1).804See id.at art. 23(2).805See id.at art. 23(1).800801

2. Basic Duties and FunctionsThe UN Charter explains the Security Council’s important mission to acton behalf of UN members to maintain peace and security and articulates theCouncil’s powers to do so.808The Security Council is empowered with threebroad approaches it can utilize to achieve its mission: (1) recommendations tothe General Assembly; (2) recommendations involving any situation ordispute that might lead to international friction; and (3) binding decisions.809This report focuses on the second as the best approach for an initialconsideration for the situation in North Korea.The Security Council’s unparalleled power and limited membership hascreated a historical tension with the General Assembly’s full UN membershipwith respect to the Council’s power to recommend action.810The Charteraddresses this friction, stating that when the Security Council exercises itspower in relation to disputes, the General Assembly may not make any furtherrecommendation regarding that dispute unless the Security Council sorequests.811Furthermore, the Secretary-General must notify the GeneralAssembly about those matters relative to maintaining international peace andsecurity that are being dealt with by the Security Council.812

B. Security Council Power under Chapter VI of the UN CharterThe protection of humanitarian needs and human rights has becomeincreasingly necessary for maintaining peace and security between nations inthis modern age, where ongoing civil conflict poses transnational consequencesto interdependent nations.813The goal of protecting humanitarian needs andUpdated membership lists are available at http://www.un.org/Docs/sc/unsc_members.html.Profiles of ambassadors serving on the Security Council areavailable athttp://www.globalpolicy.org/security/indexamb.htm.807Id;seealso,UN CHARTER, art. 30 (providing the Security Council the ability to “adopt its ownrules of procedure, including the method of selecting its President”). For list of past presidents seeUN web site,available athttp://www.un.org/Depts/dhl/resguide/scpres.htm.808UN CHARTER, art. 24(2) (referencing the powers of Chapters VI, VII, VIII, and XII).809SeeSYDNEYD. BAILEY& SAMDAWS, THEPROCEDURE OF THEUN SECURITYCOUNCIL18-20(Clarenden Press, 3d Ed., 1998). With respect to recommendations to the General Assembly,these include such issues as the admission or expulsion of members (UN CHARTER, art. 4 and 6);appointment of the Secretary-General (UN CHARTER, art. 97); and issues surrounding theInternational Court of Justice (seee.g.,UN CHARTER, art. 97 and art. 94(2)).810SeeBAILEY& DAWS,supranote 809 at 3-4.811SeeUN CHARTER, art. 12(1).812SeeUN CHARTER, art. 12(2).813SeeLois E. Fielding,Taking a Closer Look at Threats to Peace: The Power of the Security Councilto Address Humanitarian Crises,U. DET. MERCYL. REV., Vol. 73, 1995, at 552;see alsoNancy D.Arnison,International Law and Non-Intervention: When Do Humanitarian Concerns SupersedeSovereignty?FLETCHERF. WORLDAFF., Vol. 17, 1993, at 199.806

human rights is explicitly stated in the UN Charter, which provides that“[w]ith a view to the creation of conditions of stability and well-being whichare necessary for peaceful and friendly relations among nations . . . the UnitedNations shall promote . . . universal respect for, and observance of, humanrights and fundamental freedoms for all.”814The UN has commented often on the transnational effect of otherwiseinternal country situations, culminating in the endorsement by the 2005World Summit and the UN Security Council of each state’s “responsibility toprotect” its citizens from genocide, crimes against humanity, war crimes, andethnic cleansing.815Chapter VI of the Charter describes the role the UN Security Council mayplay in a country-specific situation that could endanger the maintenance ofinternational peace and security. The Security Council “may investigate . . .any situation which might lead to international friction . . . to determinewhether the continuance of the . . . situation is likely to endanger themaintenance of international peace and security.”816Any member of the UnitedNations “may bring . . . any situation of the nature referred to in Article 34, tothe attention of the Security Council . . . .”817Subsequently, having examinedthe situation, the Security Council “may, at any stage . . . of a situation of likenature, recommend appropriate procedures or methods of adjustment.”818Recommendations made under Chapter VI are non-binding.819Nevertheless,the adoption of such a resolution by the Security Council would send a clearmessage to the North Korean government that the UN is no longer willing totolerate one of its own members ignoring resolutions of the General Assembly,former Commission on Human Rights, and the Special Rapporteur. If theNorth Korean government should fail to engage with the United Nations afterthe adoption of such a resolution, the Security Council then may decide toproceed to a resolution under Chapter VII, which is binding under internationallaw on all members of the UN.820

UN CHARTER, art. 55(c).See infraAppendix II.816UN CHARTER, art. 34.817UN CHARTER, art. 35(1).818UN CHARTER, art. 36(1).819It is generally accepted that recommendations made under this chapter are not binding on UNmembers.See, e.g.,Talmon,supranote 769;but seeBAILEY& DAWS,supranote 809, at 268(discussing International Court of Justice Advisory Opinion inNamibiacase from Jun. 21, 1971).820SeeKurt Herndl,Reflections on the Role, Functions and Procedures of the Security Council of theUnited Nations, in RECUEILDESCOURS: COLLECTED COURSES OFTHEHAGUEACADEMY OFINTERNATIONALLAW323 (Martinus Nijhoff Publishers, 1997);see also Legal Consequences forStates of the Continued Presence of South Africa in Namibia (South-West Africa) NotwithstandingSecurity Council Resolution 276 (1970),1971 I.C.J. 16, 52 (Advisory Opinion of Jun. 21).814815

C. Operations of the Security Council1. VotingAs dictated by the Charter, each member of the Security Council is allowedone vote.821The number of votes needed to pass a particular measure dependson whether the issue in question is procedural or substantive in nature.822Anydecisions made regarding procedural issues may be made by the affirmativevote of nine members.823Decisions on substantive matters, however, such asactions in response to a threat to the peace, require nine affirmative votes,including the concurring or abstaining votes of the five permanent members.824Because of this requirement, the five permanent members of the SecurityCouncil each hold veto power over substantive decisions.Whether a particular item or action is procedural or substantive is adebatable issue. A discussion surrounding this issue was held at the originalUN Conference on International Organization held in San Francisco in April1945, ultimately leading to the Yalta Formula being adopted.825Discussedmore fully below, including items on the agenda, ordering the agenda items,and deferring consideration of items on the agenda are generally understoodto be procedural matters that may be adopted by an affirmative vote of anynine members and are not subject to a veto.826Once an item is on the agenda, any one of the five permanent membersmay use its veto power to prevent any substantive action from being adopted,including resolutions.827The permanent members’ ability to veto has beenwidely debated and is a key issue discussed in relation to reforming theSecurity Council.828Excluded from the veto’s scope are the consideration anddiscussion of a particular matter.829Also, if a permanent member withholds itsvote by abstaining, or not being present at a meeting, the veto power is notimplicated. Thus, a permanent member may refrain from taking a viewpointon a particular resolution while still allowing the substantive issue to pass.SeeUN CHARTER, art. 27(1);see also, Security Council’s Official Voting Record, available athttp://unbisnet.un.org:8080/ipac20/ipac.jsp?profile=voting&menu=search&submenu=power#focus.822The issue of what is procedural versus what is substantive is a discussion in and of itself, butremains outside the scope of this report.SeeBAILEY& DAWS,supranote 10, at 225-7.823Id.at�2.824Id.at�3. (Further noting “in decisions under Chapter VI, and under paragraph 3 of Article 52,a party to a dispute shall abstain from voting.”).825See Yalta Formula on Voting in the Security Council,Jun. 8, 1945, UNCIO, Vol. XI, at 710-14(outlining the framers’ intentions as to substantive versus non-substantive questions).See alsoBAILEY& DAWS,supranote 809 at 240-42 (discussing the merits of the “Yalta Formula”).826SeeBAILEY& DAWS,supranote 809, at 226.827Id.at 240-42.828See, e.g., Global Policy Forum: Articles on the Veto, availalble athttp://www.globalpolicy.org/security/veto/articles.htm (list of opinion and analysis pieces as wellas news articles dealing with the debate surrounding the veto).829SeeBAILEY& DAWS,supranote 809, at 227.821

2. ProcedureThe procedures of the Security Council are challenging to understandbecause they are based on both formal rules and informal precedent. Article30 of the Charter enables the Security Council to “adopt its own rules ofprocedure, including the method of selecting its President.” Tasked withformulating these rules, the Executive Committee of the PreparatoryCommission was divided into those that favored a strict set of rules and thosethat preferred to use practical experience along with more moderate guidingprinciples.834In 1946, after several meetings, the Council adopted 60Provisional Rules of Procedure (Rules), which have sustained only minorchanges in the subsequent decades.835The recorded evolution of the Rulesfrom daily practice is relatively unknown because most debate occurs in private.836The president presides over meetings of the Council.837In conjunctionwith the Rules, the Council has developed a range of customs and types ofmeetings. The Council may hold public gatherings in the form of formal

See UN Documentation: Research Guide on Security Council Voting Information,available at:http://www.un.org/Depts/dhl/resguide/scvote.htm, last visited last visited Sept. 1, 2006.831See id.;seealso, Global Policy Forum: Veto Use in the UN Security Council,1946-2004, athttp://www.globalpolicy.org/security/data/vetogph2.htm, last visited Sept. 1, 2006 (graphicrepresentation of the exercise of veto by each permanent member).832Meeting records from 1994 to the present areavailable athttp://www.un.org/Depts/dhl/resguide/scact.htm. Most earlier records can be found through the Official Document System ofthe United Nations,available athttp://www.un.org/documents. The text from all passed resolu-tions may be found on the Security Council web site, available at http://www.un.org/Docs/sc/unsc_resolutions.html. For more detail, speeches made before the Security Council (andbackground information) are available at http://www.un.org/Depts/dhl/resguide/scspeech.htm.833Recent Annual Reports may be found through the Official Document System of the UnitedNations,supranote 832. Earlier reports can are available at a UN depository library,available athttp://www.un.org/depts/dhl/deplib/countries/index.html.834SeeBAILEY& DAWS,supranote 809 at 9;see alsoBenedetto Conforti,The Legal Effect ofNon-Compliance with Rules of Procedure in the UN General Assembly and Security Council,AM. J.INT’LL., Vol. 63, 1969, at 479.835See generally,PROVISIONALRULES OFPROCEDURE OF THESECURITYCOUNCIL, S/96/Rev.7[hereinafter Rule]. Electronic version available at http://www.un.org/Docs/sc/scrules.htm, lastvisited Sept. 1, 2006.See alsoBAILEY& DAWS,supranote 809, at 13-16.836SeeBAILEY& DAWS,supranote 809, at 18.837SeeRule 19.830

meetings, debates, or briefings; meetings may be either open to the public orclosed private gatherings.838Under the Rules, the president holds theresponsibility for convening public meetings.839The Secretary-General has the obligation to bring matters forward for theCouncil’s consideration.840In addition, many items on the agenda may bebrought to the attention of the president and other members of the SecurityCouncil through means of informal gatherings.841In some settings, such as“Arria formula” meetings, individuals who are not members may have theopportunity to address the members of the Security Council.842Typically, asthese meetings are private and informal, no official records are kept.843Anystate or UN organ or the Secretary-General may propose items for theSecurity Council agenda, and such requests must be “immediately”communicated to representatives on the Council.844The proposed issues to be discussed in a Security Council meeting maketheir first public appearance in a “provisional agenda” containing “the list ofmatters suggested for the consideration of the Council at a specific meeting.”845Typically, this provisional agenda is then communicated to the Councilmembers within three days of the meeting.846When possible, it is also published

The formula is named for Ambassador Diego Arria of Venezuela whodevised it. In 1992, during the crisis in former Yugoslavia, a Bosnian priestcame to New York and asked to meet with various Council membersindividually. Only Ambassador Arria agreed to meet him. AmbassadorArria was so impressed with the priest’s story that he felt all Council membersshould hear it too. Obviously, it was impossible to get the Council to agreeto hear this testimony in its official sessions. So Arria simply invitedCouncil members to gather over coffee in the Delegates’ Lounge. Manyattended, the meeting was a great success and the Arria Formula was born.Global Policy Forum,Arria Formula, available athttp://www.globalpolicy.org/security/mtgsetc/arria.htm.843Id.Recently, UN Special Envoy Anna Tibaijuka spoke to the Security Council regarding thesituation in Zimbabwe, which was not on the UN Security Council agenda. The UnitedKingdom invoked the rule to vote on procedural matters by a simple majority, and was joined byeight other members to discuss Ms. Tibaijuka’s report.SeeZimbabwe report discussed at UN,BBC NEWS, Jul. 27, 2005,available athttp://news.bbc.co.uk/2/hi/africa/4721189.stm.844Rule 6.845BAILEY& DAWS,supranote 809, at 76;see alsoRule 7 (noting this ‘provisional agenda’ isdrafted by the Secretary-General and approved by the Council’s president).846Rule 8 (but providing an allowance in urgent circumstances for matter to be communicatedsimultaneously with the notice of the meeting).

in theUN Journal.847Additions or changes to this provisional agenda may bemade up to five days before the meeting or, if “urgent circumstance[s]” arefound, may be made during the meeting.848Adopting the provisional agenda as a formal agenda is the first itemdiscussed at any gathering.849If there is contention over a particular agendaitem, a country may call for a vote to have the item excluded. Considered aprocedural vote, an item will be eliminated unless nine countries vote to keepthe item on the agenda. Any items not discussed, or held for discussion atlater meetings, are found on the “summary statement of matters of which theSecurity Council is seized.”850This document lists those matters which havenot been disposed of at previous meetings, and are communicated to theCouncil members on a weekly basis.851The Security Council president determines whether to place the matter onthe formal agenda by consensus or by a majority vote. As discussed above,although the Council’s practice is not always uniform, it is generally acceptedthat motions regarding the addition of items to the agenda are procedural, andthus are not open to veto by permanent members.852Characterizing a particularaction as procedural or substantive often comes down to the vote, andwhether the votes of the five permanent members were necessary for passage.853Generally, with regard to putting items on the agenda, the voting recordconfirms the procedural nature of the matter.854Other procedural motionsinclude proposals changing the wording of items (which are usually adoptedwithout vote); including an item on the agenda but postponing consideration;

SeeBAILEY& DAWS,supranote 809, at 76.Id.849See id.;Rule 9 and 10.850Rule 11.851BAILEY& DAWS,supranote 809, at 76.852BAILEY& DAWS,supranote 809, at 85. This issue was addressed by the UN Conference onInternational Organization in San Francisco in April 1945. At this initial meeting, the Sovietrepresentative argued that the veto power should apply toany discussionof an item on the agenda.This argument was defeated in discussions with the future permanent members. This understandingwas reiterated in the conference plenary sessions in response to queries from smaller states.853The power of the “hidden veto” or “pocket veto” should, however, be mentioned. This situationrefers to instances in which a procedural matter is open to a simple majority vote, but a permanentmember uses the threat of its ultimate veto power to circumvent the passage of the matter. Forexample, even if one permanent member could not veto the inclusion of an item on the agenda,the threat of an ultimate veto of the final resolution may bring the issue to a premature end. Thisdevice is mainly used in private, non-formal meetings; because there are no formal records of suchmeetings, it is impossible to know the number of hidden vetoes used by the permanent members.SeeCéline Nahory,The Hidden Veto,The Global Policy Forum (May 2004),available athttp://www.globalpolicy.org/security/veto/2004/0519hiddenveto.htm#5;see alsoBAILEY& DAWS,supranote 809 at 249-50.854See e.g., UN Security Council Repertoire(11 Supplement, Chapter IV, 1989-1992) at 5-6 (listingthe passage of the inclusion of items on the agenda by a simple majority vote).847848

Appendix II: The New “Responsibility to Protect”Doctrine under International LawThe 21st century presents new and fundamentally different challenges fromthose faced in 1945, when the UN was founded. As new realities haveemerged, so too have new standards of conduct in national and internationalaffairs.858Human rights now have been fully embraced in international law,and respect for human rights has become a central tenet and responsibility ofstates.859In his Millennium Report to the UN General Assembly, Secretary-GeneralKofi Annan challenged UN members to reconcile their need for the preservationof sovereignty, with the need for protection of global human rights. TheSecretary-General asked “if humanitarian intervention is, indeed, anunacceptable assault on sovereignty, how should we respond . . . to gross andsystematic violations of human rights that offend every precept of our commonhumanity?”860For the better part of the last decade, the UN has been grapplingwith balancing the preservation of members’ sovereignty rights with theinternational community’s obligation to protect a member’s citizens when themember cannot or chooses not to protect its citizens.Sovereignty is the fundamental basis for nations co-existing.861But as theSecretary-General stated, some violations of human rights are so repugnant asto demand attention and action by the world community. In that regard,traditional notions of sovereignty have been evolving to include not just therights of states, but also their duties.862This appendix focuses on the sovereign’s responsibility to protect itspopulations from genocide, crimes against humanity, ethnic cleansing, andwar crimes and the obligation of the UN, up through and including theSecurity Council, to intercede where states are failing to meet their obligations.First, a description of the evolving conception of state sovereignty is provided.See, e.g.,INTERNATIONALCOMMISSION ONINTERVENTION ANDSTATESOVEREIGNTY,TheResponsibility to Protect,Dec. 2001, at�1.10 [hereinafter ICISS Report].859See id.860Secretary-General Kofi Annan,We the Peoples: The Role of the United Nations in the Twenty-FirstCentury,UN Doc. No. A/54/2000, Apr. 3, 2000, ch. 4, at 48.861The sovereignty and equality of states represent the basic constitutional doctrine of the law ofnations, which governs a community consisting primarily of states having a uniform legalpersonality. If international law exists, then the dynamics of state sovereignty can be expressed interms of law and, as states are equal and have legal personality, sovereignty is in a major aspect inrelation to other states (and to organizations of states) defined by law. The principal corollaries ofthe sovereignty and equality of states are: (i) a jurisdiction,prima facieexclusive, over a territoryand the permanent population living there; (ii) a duty of non-intervention in the area of exclusivejurisdiction of other states; and (iii) the dependence of obligations arising from customary law andtreaties on the consent of the obligor.SeeIANBROWNLIE, PRINCIPALS OFPUBLICINTERNATIONALLAW(6th ed., 2003), at 287.862SeeKofi A. Annan,Two Concepts of Sovereignty,THEECONOMIST, Sept. 18, 1999.858

2. United Nations’ Acknowledgement of Need to Protect CivilianPopulations from Crimes Against HumanityThe traditional understanding of sovereignty emphasized a state’s duty ofnon-interference in the internal affairs of other countries. Nevertheless, theworld’s experiences with the tragic consequences of otherwise internal conflictsand systematic violations of human rights have raised serious questions abouthow this concept should be understood.As early as 1992, then UN Secretary-General Boutros Boutros-Ghali observed that:Civil wars are no longer civil, and the carnage they inflictwill no longer let the world remain indifferent. The narrownationalism that would oppose or disregard the norms of astable international order and the micro-nationalism thatresists healthy economic or political integration can disrupta peaceful global existence. Nations are too interdependentSeeICISS Report,supranote 858, at�2.7.See id.865See id.at�2866SeeUN CHARTER, art. 2(1) (“The Organization is based on the principle of the sovereignequality of all its Members.”)867SeeUN CHARTER, art. 2(4) (“All Members shall refrain from the threat or use of force againstterritorial integrity or political independence of any state, or in any other manner inconsistentwith the Purposes of the United Nations.”)868SeeUN CHARTER, art. 2(7) (“Nothing contained in the present Charter shall authorize theUnited Nations to intervene in matters which areessentially within the domestic jurisdiction of anystate . . .”)(emphasis added).863864

and national frontiers are too porous and transnationalrealities . . . too dangerous to permit egocentric isolationism.869In his Millennium Report to the UN General Assembly in 2000, Secretary-General Annan challenged the world community to reconcile its need for thepreservation of sovereignty, with the need for the protection of global humanrights. The Secretary-General asked “if humanitarian intervention is, indeed,an unacceptable assault on sovereignty, how should we respond to gross andsystematic violations of human rights that offend every precept of ourcommon humanity.”870Heeding the call from the Secretary-General, the Canadian governmentcreated the International Commission on Intervention and State Sovereignty(ICISS) in September 2000.871ICISS sought to balance the interests of statesovereignty and the protection of human rights, much as the UN Charteraffirmed the principle of non-interference in domestic affairs of sovereignstates while embracing the importance of achieving international cooperationin promoting human rights.872

3. The ICISS Report on the Responsibility to ProtectThe ICISS was the first to enunciate a clear conception of the “responsibilityto protect.”873In its reportThe Responsibility to Protect,the ICISS cited theSecretary-General’s address to the General Assembly in 2000 as the catalyst fordeveloping a formal doctrine to guide future UN actions while reconciling theneed for both human security and state sovereignty.874The drafters of theICISS Report sought to “develop a global public consensus on how to movefrom polemics – and often paralysis – toward action within the internationalsystem, particularly through the United Nations.”875According to the ICISS, “members of the broad community of states dohave a responsibility to protect both their own citizens and those of otherstates as well.”876This responsibility was expressed as a comprehensive andUN SECURITYCOUNCIL,Security Council Summit Statement Concerning the Council’sResponsibility in the Maintenance of International Peace and Security,UN Doc S/23500, Jan. 31,1992, at 8-10.870We the Peoples, supranote 860, Ch. 4, at 48.871ICISS was during the UN Millennium Summit in response to Secretary-General Kofi Annan’schallenge to member states to address dilemmas posed by humanitarian crises where interventionto protect human lives and the sanctity of states’ sovereignty are in conflict.SeePace & Deller,supranote 707.872SeeUN CHARTER, art. 27 & preamble.873SeeICISS Report,supranote 858.874See id.at��1.6, 1.7 (“The Government of Canada responded to the Secretary-General’schallenge by announcing the establishment of this independent International Commission onIntervention and State Sovereignty.”)875ICISS Report,supranote 858, at�1.7876Id.at�2.27.869

normative expectation for states and the international community to protecthuman populations from the most egregious violations of human rights.877The ICISS explained that by joining the community of nations throughthe UN, signatory states voluntarily cede their sovereignty in certain ways byaccepting specific duties as members of the institution.878No longer are statesmerely the monopolists of power over a political area. The old model of“sovereignty as control” is therefore re-interpreted as “sovereignty as responsibility.”879This reformulation of sovereignty provides the legal justification of the“responsibility to protect.”The ICISS did not invent the notion of sovereignty as responsibility.880States have numerous affirmative duties arising from a variety of sources.Many multilateral treaties, UN resolutions, and other international agreementscreate affirmative obligations on states.881Certainly, the UN Charter affirmsthe sovereignty of signatory states. However, signing the Charter requires thatstates participating in the international community conform to the otherobligations as described in the Charter as well.882While the ICISS Report recognizes that the UN Charter affirmativelyprotects state sovereignty, other sources of authority from within the Charteralso support a responsibility to protect.883Article 24 of the UN Charter confersupon the Security Council the “primary responsibility for the maintenance ofinternational peace and security,” setting forth the ability of the UN to actaffirmatively on the world stage. “Maintenance of peace and security”includes more than merely the prevention of outright war. The SecurityCouncil has interpreted Article 24 to provide authority to prevent or remedyinstability caused by humanitarian crises.884With this broad interpretationafforded Article 24, the failure to protect activates the Security Council’sauthority because human security is included within the broader meaning ofinternational peace and security.885When the Security Council acts, UNSeeGraham Day & Christopher Freeman,Operationalizing the Responsibility to Protect – ThePolicekeeping Approach,11 GLOBALGOVERNANCE139 (2005) (“The Responsibility to Protect rep-resents the most sophisticated attempt at establishing a moral guideline for international action inthe face of humanitarian emergency.”).878SeeICISS Report,supranote 858, at�2.14.879Id.880See, e.g.,FRANCISM. DENG, SOVEREIGNTY ASRESPONSIBILITY: CONFLICTMANAGEMENT INAFRICA1-33 (Brookings Institution, 1996); Annan,supranotes 860, at 4.881SeeICISS Report,supranote 858, at�2.26;See also, e.g.,UN GENERALASSEMBLY, UNIVERSALDECLARATION ONHUMANRIGHTS, Dec. 10, 1948; ICCPR,supranote 219; ICESCR,supranote 116.882SeeABRAMCHAYES& ANTONIAHANDLERCHAYES, THENEWSOVEREIGNTY: COMPLIANCEWITHINTERNATIONALREGULATORYAGREEMENTS26-28 (Harvard University Press, 1995)(“[S]overeignty no longer consists in the freedom of states to act independently, in their perceivedself-interest, but in membership in reasonably good standing in the regimes that make up thesubstance of international life.”).883SeeICISS Report,supranote 858, at��6.2-6.12.884SeeDENG, supranote 880.885SeeICISS Report,supranote 858, at�2.21.877

member states must abide by the decisions by the Security Council.886Thisstructure provides the theory under which the Security Council may take actionif and when a state is unwilling or unable to fulfill its responsibility to protect.The ICISS also cited the UN General Assembly’s “fallback responsibility”to maintain international peace and security.887General Assembly resolutionsare non-binding888and it cannot consider issues concurrently discussed by theSecurity Council.889Nonetheless, the General Assembly maintains a moraland normative responsibility to protect as an organ of the UN and the worldcommunity. The General Assembly can be a powerful diplomatic tool toorganize international opinion and to pressure states to fulfill their responsibilityto protect.890The ICISS Report concludes that where a population is suffering seriousharm, as a result of internal war, insurgency, repression, or state failure, andthe state in question is unwilling or unable to halt or avert it “then it becomesthe responsibility of the international community to act in its place,” and “theprinciple of non-intervention yields to international responsibility to protect.”891While the ICISS Report was an important milestone in the internationaldebate about the protection of civilian populations facing serious humanrights abuses within countries, it is important to recall that ICISS was merelya Canadian government-funded commission. As a result, its report andrecommendations had no binding international legal effect and was merelyhortatory and aspirational. Nevertheless, the ICISS is given substantial creditfor having developed and articulated a clearer understanding of the responsibilityto protect doctrine.

B. The Evolution of the Responsibility to Protect Doctrine in the UNThe goal of protecting human rights and humanitarian needs is explicitlystated in the UN Charter, which provides that “[w]ith a view to the creationof conditions of stability and well-being which are necessary for peaceful andfriendly relations among nations . . . the United Nations shall promote universalrespect for, and observance of, human rights and fundamental freedoms forall.”892In furtherance of its goal of protecting human rights, the UNaddressed the subject in its Millennium Declaration.SeeUN CHARTER, art. 25 (“Members of the United Nations agree to accept and carry out thedecisions of the Security Council” in accordance with the present charter.”)887ICISS Report,supranote 858, at�6.7,citingUN CHARTER, art. 11.888See id.889SeeUN CHARTER, art. 12.890This report and appendix does not take a position on the General Assembly use of “Uniting forPeace” procedures to justify international intervention, as favorably discussed by ICISS Report,supranote 858, at�6.7.891ICISS Report,supranote 858, at synopsis &�2.29.892UN CHARTER, Art. 55(c).886

In the wake of the ICISS Report, the UN, through a series of steps, hasadopted a more narrow version of the responsibility to protect doctrine.894On September 23, 2003, Secretary-General Annan announced that he wasforming a High-Level Panel to “focus primarily on threats to peace and security,”and to recommend needed changes to the structure and operations of theUN.895The High-Level Panel issued its report in December 2004, entitledAMore Secure World: Our Shared Responsibility.896The High-Level Panel’s reportprovided numerous recommendations to strengthen the international securityframework and explicitly endorsed the responsibility to protect doctrine.897The High-Level Panel reaffirmed “there is a collective international responsibilityto protect, exercisable by the Security Council . . . in the event of genocideand other large-scale killings, ethnic cleansing or serious violations of internationalhumanitarian law which sovereign governments have proved powerless orunwilling to prevent.”898The report endorsed the theoretical underpinnings of the doctrine articulatedby the ICISS – that sovereignty is more than merely the undisputed powerover a political entity, but also includes responsibilities.899The report interpretsthe UN Charter and sovereignty to protect states “not because they areintrinsically good but because they are necessary to achieve the dignity, justice,G.A. RES. 55/2,United Nations Millennium Declaration,Sept. 8, 2000.ICISS also articulated a series of guiding principles to apply when the United Nations wouldconsider armed intervention for humanitarian purposes. The entire question of armed interventionwas ultimately not addressed in the articulation of the responsibility to protect doctrine by theUnited Nations.895Secretary-General Kofi Annan,Address to the General Assembly,New York, Sept. 23, 2003.896SeeHigh-Level Panel,supranote 707.897See id.at�203.898See id.at�203.899See id.at��29-30.893894

worth and safety of their citizens.”900By stating that sovereignty “carries withit the obligation of a State to protect the welfare of its own peoples and meetits obligations to the wider international community,”901the report transforms themeaning of UN membership and participation in the international community.902In adopting the responsibility to protect, the High-Level Panel:•Affirmed that with state sovereignty comes the “obligation of a State toprotect the welfare of its own peoples;”Declared that the international community has a responsibility toprotect peoples when states are “unable or unwilling to do so;”Defined responsibility as “spanning a continuum involving prevention,response to violence, if necessary and rebuilding shattered societies;”903andStated the responsibility to protect doctrine applies to “every statewhen it comes to suffering from avoidable catastrophes – mass murderand rape, ethnic cleansing by forcible expulsion and terror, anddeliberate starvation and exposure to disease.”904

Like the ICISS before it, the High-Level Panel’s recommendations reflectedan important perspective of a well-regarded group of experts, but were notbinding under international law. Subsequently the Secretary-Generalendorsed much of the work by the High-Level Panel in his recommendationsfor the agenda of the 2005 World Summit and initiated the process of havingthe international community formally recognize the doctrine. In his reportentitledIn Larger Freedom: Towards Development, Security and Human Rightsfor All905, the Secretary-General described his goals for the World Summit, andchallenged the world’s governments to “embrace the ‘responsibility to protect.’”906While the High-Level Panel had discussed the responsibility to protect as asubset of its discussion of “Collective Security and the Use of Force,” theSecretary-General separated the discussion of the responsibility to protect fromthe discussion of the use of force.907Instead, the Secretary-General made clearthat the responsibility to protect was a “normative and moral undertakingSee id.at�30.See id.at�29.902Anne-Marie Slaughter,Note and Comment: Security, Solidarity, and Sovereignty: The GrandThemes of UN Reform,99 A.J.I.L. 619, 627 (2005) (describing the High-Level Panel,supranote707, at 29-30, as a “tectonic shift, reinterpreting the very act of signing the Charter”).903SeePace & Deller,supranote 707, at 23,citingHigh-Level Panel,supranote 707, at��29, 201.904See id.at�201 (emphasis added).905SeeReport of the Secretary-General,In Larger Freedom: Towards Development Security, andHuman Rights for All,Mar. 21, 2005.906Id.at Annex, III.7(b).907SeePace & Deller,supranote 707, at 25, referring to the High-Level Panel,supranote 707, at�183-209, andIn Larger Freedom, supranote 905, at��122-26, 135.900901

requiring a state to protect its own citizens,” not merely a justification forinternational collective action.908TheWorld Summit Outcome Document,adopted unanimously by the headsof states and governments attending the opening of the 60th GeneralAssembly, endorsed the responsibility to protect doctrine. Specifically, theGeneral Assembly determined:Responsibility to protect populations from genocide, war crimes,ethnic cleansing and crimes against humanity138. Each individual State has the responsibility to protect itspopulations from genocide, war crimes, ethnic cleansingand crimes against humanity. This responsibility entailsthe prevention of such crimes, including their incitement,through appropriate and necessary means. We accept thatresponsibility and will act in accordance with it. Theinternational community should, as appropriate, encourageand help States to exercise this responsibility and supportthe United Nations in establishing an early warning capability.139. The international community, through the United Nations,also has the responsibility to use appropriate diplomatic,humanitarian and other peaceful means, in accordancewith Chapters VI and VII of the Charter, to help protectpopulations from genocide, war crimes, ethnic cleansingand crimes against humanity. In this context, we areprepared to take collective action, in a timely and decisivemanner, through the Security Council, in accordance withthe Charter, including Chapter VII, on a case-by-case basisand in cooperation with relevant regional organizations asappropriate, should peaceful means be inadequate andnational authorities manifestly fail to protect their populationsfrom genocide, war crimes, ethnic cleansing and crimesagainst humanity. We stress the need for the GeneralAssembly to continue consideration of the responsibility toprotect populations from genocide, war crimes, ethniccleansing and crimes against humanity and its implications,bearing in mind the principles of the Charter and internationallaw. We also intend to commit ourselves, as necessary andappropriate, to helping States build capacity to protecttheir populations from genocide, war crimes, ethnic cleansingand crimes against humanity and to assisting those whichare under stress before crises and conflicts break out.909908909

The General Assembly agreed that individual sovereigns have a responsibilityto protect their own populations, and that “[t]he international community,through the United Nations, also has the responsibility to use appropriatediplomatic, humanitarian and other peaceful means . . . to help protectpopulations from . . . crimes against humanity.”910For the first time, theleaders of the world definitively endorsed the responsibility to protect doctrine.They expressed their readiness, should states manifestly fail to protect theirpopulations, “to take collective action, in a timely and decisive manner,through the Security Council . . . .”911In theWorld Summit Outcome Document,world leaders also pledged thatthe international community, acting through the Security Council, was“prepared to take collective action in a timely and decisive manner” whenstates are “manifestly failing to protect their populations from genocide, warcrimes, ethnic cleansing and crimes against humanity.”912In essence, UNmembers pledged to hold its own members accountable if a civilian populationwas threatened by massive and systematic violations of human rights.913With regard to the responsibility to protect, theWorld Summit OutcomeDocumentdeparted in one substantial way from the recommendations of theHigh-Level Panel, a departure that has had significant impact on governmentalacceptance of the World Summit Outcome agenda.914The High-Level Panelconsidered the responsibility to protect a subset of its discussion of “CollectiveSecurity and the Use of Force” describing the subject as “Using Force: Rulesand Guidelines.”915As a result of being placed in the context of “using force,”many governments viewed the High-Level Panel’s recommendations about theresponsibility to protect as re-characterizing the humanitarian interventionconcept, a concept that many governments had rejected as unlawful interferencein the internal affairs of another state.916In contrast, theWorld SummitOutcome Documentonly discussed the normative aspects of the responsibilityto protect and substantially reduced any discussion about of the use of force toprotect civilian populations.917

Id.Id.at�139.912Responsibility to Protect – Engaging Civil Security R2PCS Features, at p. 3,available atwww.responsibilitytoprotect.org/index.php.features/465?913See id.914SeePace & Deller,supranote 707.915High-Level Panel,supranote 707, at��183-209.916Pace & Deller,supranote 707.917TheWorld Summit Outcome Documentmakes clear that the issue is not merely about the use offorce; it is also about anormative and moral undertakingrequiring a state to protect its own civilians.If a state fails to do so, the international community must deploy a range of peaceful, diplomatic,and humanitarian measures, with force to be employed only as a last resort.SeePace & Deller,supranote 707.910911

On April 28, 2006, the Security Council unanimously adopted Resolution1674 on theProtection of Civilians in Armed Conflict.Resolution 1674contains the first Security Council endorsement of the responsibility to protectdoctrine. In reference to the responsibility to protect, Resolution 1674 statesthe Security Council’s reaffirmation of support for:The provisions of paragraphs 138 and 139 of the WorldSummit Outcome Document regarding the responsibility toprotect populations from genocide, war crimes, ethniccleansing and crimes against humanity.918Both the UN General Assembly and UN Security Council have agreed totake collective action in a timely and decisive manner when states are failing toprotect their own populations from genocide, war crimes, ethnic cleansing,and crimes against humanity. TheWorld Summit Outcome Documentmakesclear that the Security Council has discretion as to when it may act to invokethe responsibility to protect doctrine. In employing the responsibility toprotect, the international community must first apply a range of peacefuldiplomatic and humanitarian measures through various regional organizationsand UN entities before turning to the Security Council. This report imploresthe United Nations, through the Security Council, to invoke the responsibilityto protect doctrine because all other efforts to engage with North Koreathrough the UN system to address the sets of activities which comprise crimesagainst humanity (i.e., food policy and famine, and the gulag system) havefailed to protect the civilian population of the country.

Appendix III: Crimes Against HumanityThe definition of the international category of crimes known as crimesagainst humanity has undergone several revisions since the concept was firstdefined in the 1945 London Charter. Unlike with other international crimessuch as genocide, no specialized convention exists for crimes against humanitythat articulates a universally recognized definition of the crime. Instead, twodefinition choices may be used in assessing a claim: the definition undercustomary international law and the Rome Statute of the InternationalCriminal Court (ICC) definition.The current definition of crimes against humanity cannot be understood orappreciated without reference to the definition’s historical evolution919; therefore,this appendix traces its evolution from 1945 to the present. First, the historicalevolution of the definition of crimes against humanity is discussed. Second,the definition of crimes against humanity in customary international law asderived from the jurisprudence of the International Criminal Tribunal ofYugoslavia (ICTY) and the International Criminal Tribunal of Rwanda(ICTR) is presented. Third, the Rome Statute’s definition of crimes againsthumanity, codifying customary international law with some additional elementsis described. Lastly, an analysis of the appropriate definition of crimes againsthumanity in assessing a claim against a state that is not a signatory to theRome Statute is explained.This appendix concludes that a comprehensive definition of crimes againsthumanity emerges from customary international law and the Rome Statute,though its parameters remain imprecise and are determined by each statutorydefinition and each international tribunal. Notwithstanding this imprecision,this appendix identifies the elements that must be satisfied in any jurisdictionto elevate an ordinary crime to an international crime against humanity.

A. The Evolution of the Definition of Crimes Against HumanityThe London Charter of 1945 formalized the definition of crimes againsthumanity for the first time in Article 6(c)920, though the concept had existedin international law well before World War II.921Soon thereafter, the TokyoMargaret McAuliffe deGuzman,The Road from Rome: The Developing Law of Crimes AgainstHumanity,22 HUM. RTS. Q. 335 (2000).920Article 6: The following acts . . . are crimes coming within the jurisdiction of the Tribunal forwhich there shall be individual responsibility: . . . (c) Crimes against Humanity: namely, murder,extermination, enslavement, deportation, and other inhumane acts committed against any civilianpopulation, before or during the war, or persecutions on personal, racial or religious grounds inexecution of or in connection with any crime within the jurisdiction of the Tribunal, whether ornot in violation of the domestic law of the country where perpetrated.921The concept of crimes against humanity had already been expressed in the 1907 HagueConvention, the Versailles Treaty, and the Report of the 1919 Commission on the Responsibilitiesof the Laws and Customs of War.SeeM. Cherif Bassiouni,Crimes Against Humanity: The Needfor a Specialized Convention,31 COLUM. J. TRANSNAT’LL. 465 (1993-1994).919

Charter and the Allied Control Council Law No. 10 (CCL 10) presented theirown definitions of the crime. In each formulation, crimes against humanitywere considered to be an extension of war crimes and crimes against the peace,thus requiring a connection with an armed conflict.922The Allied Powers of World War II drafted the London Charter as aninternational agreement to prosecute Nazi war criminals at Nuremberg andsigned the Charter on August 8, 1945.923The Tokyo Charter and the CCL 10also defined crimes against humanity. Though the definitions differed slightlyfrom the London Charter, the same legal issues pertain to all three. GeneralDouglas MacArthur adopted the Tokyo Charter by proclamation in 1946,rather than via an international agreement like the London Charter, toprosecute war criminals before the International Military Tribunal for the FarEast924; and Article 5(c) defined crimes against humanity.925The TokyoCharter’s definition is slightly different from the London Charter’s definition,in that the Tokyo Charter both specifies categories of persons to be heldresponsible and does not make persecution subject to religious grounds. TheAllied Control Council was a joint body formed by the Allied occupyingpowers to administer Germany after World War II. CCL 10 was adopted in1945, and was a hybrid between international law and national law.926ArticleII(c) defined crimes against humanity.927The CCL 10 was not intended to bean international instrument but instead was drafted as national legislation.928There are three principal differences between the CCL 10 and the Londonand Tokyo Charters. The CCL 10 defines crimes against humanity first as“atrocities and offenses,” which are very broad terms, and then lists examplesof what constitute such “atrocities and offenses.”929Second, the CCL 10 adds

M. CHERIFBASSIOUNI, CRIMESAGAINSTHUMANITY ININTERNATIONALCRIMINALLAW(Kluwer Law International, 1999).923See id.at 1.924See id.at 2.925Article 5: . . . The following acts . . . are crimes coming within the jurisdiction of the Tribunalfor which there shall be individual responsibility: . . .(c) Crimes against Humanity: Namely,murder, extermination, enslavement, deportation, and other inhumane acts committed againstany civilian population, before or during the war, or persecutions on political or racial grounds inexecution of or in connection with any crime within the jurisdiction of the Tribunal, whether ornot in violation of the domestic law of the country where perpetrated. Leaders, organizers,instigators, and accomplices participating in the formulation or execution of a common plan orconspiracy to commit any of the foregoing crimes are responsible for all acts performed by anyperson in execution of such plan.926SeeBASSIOUNI,supranote 922, at 3.927Article II: Each of the following acts is recognized as a crime: . . . (c) Atrocities and offenses,including but not limited to murder, extermination, enslavement, deportation, imprisonment,torture, rape, or other inhumane acts committed against any civilian population, or persecutionson political, racial, or religious grounds whether or not in violation of the domestic laws of thecountry where perpetrated.928SeeBASSIOUNI,supranote 922, at 34.929Id.922

the prohibited acts of imprisonment and rape, even though they are includedin the words of “other inhumane acts” in both the London Charter and theTokyo Charter.930Finally, the CCL 10 removes any connection between thespecific crimes listed in Article II(c) and “crimes against peace” or “warcrimes”; whereas the London Charter and the Tokyo Charter limit the findingof crimes against humanity to those prohibited acts committed in connectionwith any crime within the jurisdiction of the tribunal.931By doing so, theCCL 10 arguably overreaches and strains the “principles of legality” bydisconnecting crimes against humanity from war crimes and crimes againstthe peace.932The London and Tokyo Charters connected all crimes against humanity towar crimes or crimes against the peace because international customary law atthe time deemed crimes against humanity to be an extension of these twocrimes. However, “crimes against humanity” has evolved to become its owndistinct category of international crime, even though it has never been thesubject of its own specialized convention.933The London and Tokyo tribunals’statutes and jurisprudence provided the basic concept for crimes againsthumanity, but left the crime’s precise contours vague and overlapping withthat of war crimes.934

B. Customary International Law’s Current Definition of CrimesAgainst HumanityCustomary international law’s definition of crimes against humanity todayis derived from the jurisprudence of the ICTY and the ICTR.935The ICTY isa United Nations body established to prosecute crimes against humanity inthe former Yugoslavia. The ICTR is an international court under the UnitedNations’ auspices for prosecuting offenses committed in Rwanda during theconflict in 1994. Both tribunals have adopted similar definitions of crimesagainst humanity in their respective statutes.Beginning with the London Charter, each definition of crimes againsthumanity shares a common structure: enumerated prohibitedactus reus(“guilty acts”) of a domestic criminal nature that become international crimeswhen committed under certain circumstances. Each definition contains similaractus reus,but the circumstances that elevate the crime to an internationalstatus have evolved over time. The following discussion will center on theevolution of these circumstances (i.e., international or jurisdictional elements)Id.Id.932See id.933See id.at 41.934See id.at 32, fn. 68.935The International Criminal Tribunal for Sierra Leone has also been established by a UnitedNations Security Council Resolution and will be a future source of jurisprudence, but has yet toissue a judgment.930931

contained in thechapeauof the statutes to demonstrate which circumstanceselevate a domestic crime to an international status under today’s customaryinternational law.Both the ICTY936and the ICTR937statutes and jurisprudence hold that thefollowing five elements must exist for the crime to be a crime against humanity:1. There must be an attack;2. The acts of the accused must be part of the attack;3. The attack must be widespread or systematic;4. The attack must be directed against any civilianpopulation; and5. The principal offender must know of the wider contextin which his acts occur and know that his acts are partof the attack.938Other than the five requisite elements above, the statutes from eachtribunal require additional elements that establish the jurisdictional boundariesunique to each tribunal and do not reflect customary international law.939Infact, statutory provisions defining the crimes within the tribunal’s jurisdictionArticle 5. The International Tribunal shall have the power to prosecute persons responsible forthe following crimes when committed in armed conflict, whether international or internal incharacter, and directed against any civilian population:a) murder;b) extermination;c) enslavement;d) deportation;e) imprisonment;f ) torture;g) rape;h) persecutions on political, racial, and religious grounds;i) other inhumane acts.937Article 3. The International Tribunal for Rwanda shall have the power to prosecute personsresponsible for the following crimes when committed as part of a widespread or systematic attackagainst any civilian population on national, political, ethnic, racial, or religious grounds:a) murder;b) extermination;c) enslavement;d) deportation;e) imprisonment;f ) torture;g) rape;h) persecutions on political, racial, and religious grounds;i) other inhumane acts.938Prosecutor v. Kunarac, Kovac, and Vukovic(Case No. IT-96-23-A & IT-96-23/1-A), Judgment,Jun. 12, 2002,�85;Prosecutor v. Krnojelac(Case No. IT-97-25-T), Judgment, Mar. 15, 2002,�53;Prosecutor v. Bisengimana,(Case No. ICTR-00-60-T), Judgment, Apr. 13, 2006,��41-57.939SeePhyllis Hwang,Defining Crimes Against Humanity in the Rome Statute of the InternationalCriminal Court,22 FORDHAMINT’LL. J. 457 (1998-1999).936

always should be interpreted as reflecting customary international law, unlessan intention to depart from customary international law is expressed in theterms of the statute or from other authoritative sources,e.g.,armed conflictrequirement.940The ICTY requires that the crimes be “committed in armedconflicts, whether international or internal in character.”941The ICTR, on theother hand, requires all prohibited acts to be committed on discriminatorygrounds, not just the prohibited act of persecution.942These differences arediscussed below in light of their place in today’s customary international law.To fully assess customary international law’s definition of crimes againsthumanity, six separate international or jurisdictional elements must beconsidered: 1) the ICTY’s armed conflict requirement; 2) the ICTR’sdiscriminatory grounds; 3) what constitutes an attack; 4) whether an attack isdirected against any civilian population; 5) what constitutes a widespread orsystematic attack; and 6) the requisitemens rea(“guilty mind”).Armed Conflict RequirementThe ICTY’s definition is closer to the London Charter’s Article 6(c) thanthe ICTR’s definition, but the ICTY’s requisite connection to an armedconflict goes beyond customary international law as it stands today.943Asmentioned above, the ICTY requires that an armed conflict exist, whetherinternational or internal in nature944, and much of the ICTY’s jurisprudencehas considered whether this constitutes a substantive or jurisdictional elementfor the crime. InTadic,the ICTY Appeals Chamber held that “an armedconflict is not a condition for a crime against humanity, but [exists] for itspunishment by the Tribunal.”945In other words, the armed conflict requirementis merely a jurisdictional element, and “in fact runs contrary to customaryinternational law.”946Finally, under current customary international law,crimes against humanity may also be committed in times of peace; therefore,one need not prove that there was an armed conflict.947“An armed conflict exists whenever there is a resort to armed force betweenStates or protracted violence between governmental authorities and organizedarmed groups or between such groups within a state.”948The armed conflictrequirement is satisfied by proof that there was an armed conflict at theSee Prosecutor v. Tadic(Case No. IT-94-1-A), Judgment, Jul. 15, 1999, at�296.Article 3 of the ICTR Statute and Article 5 of the ICTY Statute.942SeeBASSIOUNI,supranote 922, at 194.943See Tadic, supranote 940, at�251.944SeeBASSIOUNI,supranote 922, at 194.945See Tadic, supranote 940, at�251;Prosecutor v. Blaskic(Case No. IT-95-14-T), Judgment,Mar. 3, 2000, at�66.946See id.947See id.948Prosecutor v. Tadic(Case No. IT-94-1-A), Decision on the Defense Motion for InterlocutoryAppeal on Jurisdiction, Oct. 2, 1995, at�70;Prosecutor v. Kunarac, Kovac, and Vukovic(Case No.IT-96-23-T & IT-96-23/1-T), Judgment, Feb. 22, 2001, at�412.940941

relevant time and place949, and that the accused’s acts were closely related tothat conflict.950The recentStakicdecision held that “the nexus need not be acausal link, but the existence of an armed conflict must, at a minimum, haveplayed a substantial part in the perpetrator’s ability to commit the crime, hisdecision to commit it, the manner in which it was committed or the purposefor which it was committed.”951In addition, the decision maker should consider whether the accused is acombatant, the victim is a non-combatant, the victim is a member of theopposing party, the act may be said to serve the ultimate goal of a militarycampaign, and the crime is committed as part of or in the context of theaccused’s official duties.952No one criterion is dispositive, but each may assistthe determination. Thus, the ICTY jurisdictional prerequisite is satisfied byproof that there was an armed conflict and that objectively the accused’s actsare linked both geographically and temporally with the armed conflict.953Discriminatory GroundsThe ICTR Statute is the only international instrument to explicitly requirediscrimination for the commission of all crimes against humanity “on national,political, ethnic, racial, or religious grounds.”954This jurisdictional elementlimits the ICTR’s jurisdiction to a narrower category of crimes, but it does notalter the definition of crimes against humanity in customary internationallaw.955In contrast and consistent with customary international law, the ICTYStatute limits the discriminatory intent requirement to the prohibited act ofpersecution, rather than extending it to cover the other prohibited acts – the“murder-type” acts.956Under the ICTR, the attack must be committed on one or morediscriminatory grounds – namely national, political, ethnic, racial, or religiousgrounds.957InAkayesu,the Appeals Chamber held that, except for persecution,a discriminatory intent is not required by customary international law as alegal ingredient for all crimes against humanity.958This was also supported bythe ICTY Appeals Chamber inTadic.959In addition, “acts committed againstpersons outside the discriminatory categories need not necessarily fall out withTadic,Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (AC), at�70;Kunarac, Kovac, and Vukovic (TC), supranote 948, at�413.950Prosecutor v. Stakic,(Case No. IT-97-24-A), Judgment, Mar. 22, 2006, at�342.951Id.; see also Kunarac, Kovac, and Vukovic (AC), supranote 938, at�58.952See Kunarac, Kovac, and Vukovic (AC), supranote 938, at�83.953See id.954SeeMcAuliffe deGuzman,supranote 919, at 364.955Prosecutor v. Kajelijeli(Case No. ICTR-98-44A-T), Judgment, Dec. 1, 2003, at�877.956SeeBASSIOUNI,supranote 922, at 26; Mohamed Elewa Badar,From the Nuremberg Charter to theRome Statute: Defining The Elements of Crimes Against Humanity,5 SANDIEGOINT’LL. J. 100 (2004).957See Bisengimana (TC), supranote 938, at�41-57.958Prosecutor v. Akayesu(Case No. ICTR-96-4-A), Judgment, Jun. 1, 2001,�464-465.959See Tadic (AC), supranote 940, at�292.949

the jurisdiction of the [ICTR], if the perpetrator’s intention in committingthese acts is to support or further the attack on the group discriminatedagainst on one or more of the enumerated grounds.”960An AttackICTY and ICTR jurisprudence have defined “attack” to be a course ofconduct involving the commission of violence of the type enumerated as theactus reusof the crime.961The underlying offense need not constitute theattack, but must form part of the attack or comprise part of a widespread orsystematic pattern of crimes directed against a civilian population.962The termis not limited to conducting hostilities, but “it may also include situations ofmistreatment of persons taking no active part in hostilities, such as someonein detention.”963Directed Against Any Civilian PopulationAll codifications of the definition of crimes against humanity have includeda requirement that these acts be “directed against any civilian population.”964To establish whether the attack was “directed against any civilian population,”“a sufficient number of individuals [must be] targeted in the attack, or . . .targeted in such a way as to satisfy the Chamber that the attack was in factdirected against a civilian population and not only against a limited number ofindividuals who were randomly selected.”965An attack is “directed against” a civilian population if the civilian populationwas the attack’s primary object.966In determining whether the civilianpopulation was the primary object of the attack, “the means and method usedin the course of the attack, the status of the victims, their number, thediscriminatory nature of the attack, the nature of the crimes committed in itscourse, the resistance to the assailants at the time and the extent to which theattacking force may be said to have complied or attempted to comply with theprecautionary requirements of the laws of war” will be considered.967The entire population of a geographical entity in which an attack is takingplace need not be subjected to the attack – only a significant number needs tobe involved.968The civilian population includes “[p]eople who are not takingSee Bisengimana (TC), supranote 938, at�41;Kajelijeli (TC), supranote 955, at�878.See Krnojelac (TC), supranote 938, at�54;Kajelijeli (TC), supranote 955, at�867.962See Tadic (AC), supranote 940, at��248 and 251;See Kunarac, Kovac, and Vukovic (TC),supranote 948, at�417.963Kunarac, Kovac, and Vukovic (TC), supranote 948, at�416.964McAuliffe deGuzman,supranote 919, at 360.965Prosecutor v. Simic, Tadic, and Zaric(Case No. IT-95-9-T), Oct. 17, 2003, at�42.966Prosecutor v. Naletilic and Martinovic(Case No. IT-98-34-T), Judgment, Mar. 31, 2003, at�235;Prosecutor v. Semanza(Case No. ICTR-97-20-T), Judgment, May 15, 2003, at�330.967Kunarac, Kovac, and Vukovic (AC), supranote 938, at�91.968See Naletilic and Martinovic (TC), supranote 966, at�235.960961

any active part in the hostilities, including members of the armed forces wholaid down their arms and those personshors de combatby sickness, wounds,detention, or any other cause.”969Finally, the presence of certain non-civiliansin the area does not change the character of that population so long as thetargeted population is predominantly civilian in nature.970Further, customary international law does not require the existence of anarmed conflict. Therefore, the term “civilian” must be understood within thecontext of both war and relative peace; this is considered customary internationallaw.971When determining the victim’s status as a civilian, the victim’s specificsituation at the moment the crimes were committed, rather than the victim’spossible employment in the military, must be considered.972Widespread or Systematic“The ‘widespread or systematic’ requirement is fundamental in distinguishingcrimes against humanity from common crimes,”973and has been implicit inevery iteration of the definition since the London Charter.974In fact, theICTY Statute does not explicitly include the requirement that the attack be“widespread or systematic.” However, the Appeals Chamber inTadicrecognizedthat crimes that are unrelated to widespread or systematic attacks on a civilianpopulation should not be prosecuted as crimes against humanity.975Thus, thephrase “directed against any civilian population” should be interpreted tomean that the “acts must occur on a widespread or systematic basis.”976Importantly, only the attack – not the accused’s individual acts – must bewidespread or systematic.977The term “widespread” has been interpreted to refer to the large-scalenature of the attacks and number of victims.978“Systematic” refers to theorganized nature of the violent acts and the improbability that the violencewas random.979

Kajelijeli (TC), supranote 955, at�873;Prosecutor v. Akayesu(Case No. ICTR-96-4-T),Judgment, Sept. 2, 1998,�582;Blaskic (TC), supranote 945, at�214.970See Kajelijeli (TC), supranote 955, at�873;Prosecutor v. Kayishema and Ruzindana(Case No.ICTR-95-1-T), Judgment, May 21, 1999, at�128.971See Kayishema and Ruzindana (TC), supranote 970, at�127.972See Bisengimana (TC), supranote 938, at�49.973Badar,supranote 956, at 109.974McAuliffe deGuzman,supranote 919, at�376.975See Tadic (AC), supranote 940, at�271.976Prosecutor v. Tadic,(Case No. IT-94-1-T), at�644.977See Kunarac, Kovac, and Vukovic (TC), supranote 948, at�431.978See Kunarac, Kovac, and Vukovic (AC), supranote 938, at�94;Bisengimana (TC), supranote938, at�44.979See Kunarac, Kovac, and Vukovic (AC), supranote 938, at�94;Bisengimana (TC), supranote 938,at�45;Prosecutor v. Kamuhanda(Case No. ICTR-95-54A-T), Judgment, Jan. 22, 2004,�666.969

There has been some debate in the jurisprudence of the ICTY and ICTR980and the literature981about whether the existence of a plan or policy is anindependent legal element of crimes against humanity. In its most recentopinions, the tribunals have held that “whilst the existence of a policy or planmay be evidentially relevant, the existence of such a plan is not a separate legalelement of the crime.”982Such plan or policy may nevertheless be relevant tothe requirement that the attack must be widespread or systematic and that theaccused’s acts must be part of that attack.983Mens reaNeither statute specifically includes themens reafor the crime, but bothtribunals’ jurisprudence has articulated the standard. In order to satisfy therequisitemens rearequirement for the commission of crimes against humanity,“the accused must have the intent to commit the underlying offense(s) withwhich he is charged, and he must have actual or constructive knowledge thatthere is an attack on the civilian population and that his acts comprise part ofthat attack,” or at least that he took the risk that they are part thereof.984Thisdoes not require knowledge of the attack’s details.985In addition, the accusedmust know or have considered that the victim of his crime was a civilian.986Finally, the accused does not need to share in the motive, intent, or purpose ofthose involved in the attack.987There is no requirement of discriminatory intent for all crimes againsthumanity in customary international law.988As stated above, the ICTYStatute, like the London and Tokyo Charters, distinguishes between “murder-type” prohibited acts and the crime of “persecution.”989“Murder-type” acts do

See Kunarac, Kovac, and Vukovic (AC), supranote 938, at�98;Kamuhanda (TC), supranote 979,at�665;Kajelijeli (TC), supranote 955, at�872;Semanza (TC), supranote 966, at�329;Krnojelac (TC), supranote 938, at�58;Simic, Tadic, and Zaric (TC), supranote 965, at�44.981SeeBASSIOUNI,supranote 922, at�243 (stating that crimes against humanity occur as a resultof state action or policy is consonant with the present state of international law); McAuliffedeGuzman,supranote 919, at�374 (discussing the confusion surrounding the significance of apolicy element); Badar,supranote 956, at�114 (stating that under customary international lawit is no longer required that the policy is the policy of a state).982Kunarac, Kovac, and Vukovic (AC), supranote 938, at�98;Kamuhanda (TC), supranote 979,at 665;Kajelijeli, supranote 955, at�872;Semanza (TC), supranote 966, at�329;Krnojelac (TC),supranote 938, at�58;Simic, Tadic, and Zaric (TC), supranote 965, at�44.983See Prosecutor v. Blaskic(Case No. IT-95-14-A), Judgment, Jul. 29, 2004, 100;Kunarac, Kovac,and Vukovic (AC), supranote 938, at�98;Krnojelac (TC), supranote 938, at�58;Simic, Tadic,and Zaric (TC), supranote 965, at�44.984Kunarac, Kovac, and Vukovic (AC), supranote 938, at�102;Kajelijeli (TC), supranote 955, at�880;Semanza,Judgment (TC),�332;Kayishema and Ruzindana (TC), supranote 970, at�134.985See Krnojelac (TC), supranote 938, at�59.986See Kunarac, Kovac, and Vukovic (TC), supranote 948, at�435.987See Simic, Tadic, and Zaric (TC), supranote 965, at�45;Semanza (TC), supranote 966, at�332.988See Tadic (AC), supranote 940, at�292.989Id.at�275.980

not require discriminatory intent, while the prohibited act of “persecution”does require discriminatory intent.990Please see the discussion above for thediscriminatory intent requirement under the ICTR.Actus Reus: Enumerated Prohibited ActsAs mentioned above, only the jurisdictional or international elements arebeing discussed in this appendix. For reference, the ICTY and the ICTRshare in prohibiting the same acts: murder, extermination, enslavement,deportation, imprisonment, torture, rape, persecutions on political, racial, andreligious grounds, and other inhumane acts. The jurisprudence from eachtribunal references the other tribunal, as well as domestic criminal law, indetermining what constitutes each of these crimes.991ConclusionThis historical evolution of the definition of crimes against humanity inICTY and ICTR jurisprudence paved the way for the Rome Statute’s definitionof crimes against humanity, which enlarges the specific content in the definition.Even though the customary international law definition is well supported inthe jurisprudence and is already deemed part ofjus cogens(“preemptory normof international law”) and raises obligationsergo omnes992(“to internationalcommunity as a whole”), the legal developments since 1945 of the definitionof crimes against humanity remains complex, and many scholars have suggestedthis international category of crimes needs its own specialized convention.

jurisprudence in 1998994, it does not adequately serve as a substitute for aspecialized convention for crimes against humanity. Nevertheless, the 1998Statute does codify existing customary international law, and adds additionalelements agreed to by the state parties.Article 7(1) of the Rome Statute is divided into two parts: the internationalor jurisdictional elements and the enumerated prohibited acts. ThechapeauofArticle 7(1) identifies the five international or jurisdictional elements thatconstitute the requisite circumstances that elevate a domestic crime to theinternational level:1. There must be an attack;2. The acts of the accused must be part of the attack;3. The attack must be widespread or systematic;4. The attack must be directed against any civilianpopulation; and5. The accused must have knowledge of the attack.995In addition to these five elements, the Rome Statute explicitly defines whatconstitutes an “attack directed against any civilian population,” which potentiallyplaces its definition in conflict with that of current customary internationallaw. The term “attack” is defined as “a course of conduct involving the multiplecommission of acts referred to in paragraph 1 against any civilian population,pursuant to or in furtherance of a State or organizational policy to commit“1. For the purpose of this Statute, ‘crime against humanity’ means any of the following actswhen committed as part of a widespread or systematic attack directed against any civilianpopulation, with knowledge of the attack:a) Murder;b) Extermination;c) Enslavement;d) Deportation or forcible transfer of population;e) Imprisonment or other severe deprivation of physical liberty inviolation of fundamental rules of international law;f ) Torture;g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforcedsterilization, or any other form of sexual violence of comparable gravity;h) Persecution against any identifiable group or collectivity on political,racial, national, ethnic, cultural, religious, gender as defined inparagraph 3, or other grounds that are universally recognized asimpermissible under international law, in connection with any actreferred to in this paragraph or any crime within the jurisdiction ofthe Court;i) Enforced disappearance of persons;j) The crime of apartheid;k) Other inhumane acts of a similar character intentionally causing greatsuffering, or serious injury to body or to mental or physical health.995Article 7(1) of the ICC Statute.994

such attack.”996The acts need not constitute a military attack; it is understoodthat “policy to commit such attack” requires that the state or organizationactively promote or encourage such an attack against a civilian population.997In addition, this explanatory note defining an “attack directed against anycivilian population” potentially requires both a widespread and systematicattack – rather than requiring only one or the other – by requiring thecommission of multiple acts pursuant to a policy to commit such an attack.998To date, there is no jurisprudence from the ICC interpreting this requirement;however, a plain reading of the Rome Statute indicates that “widespread” and“systematic” are disjunctive and not cumulative requirements.999Thechapeauof Article 7(1) defines the requisitemens reafor the crime tobe knowledge of the attack. The Preparatory Commission for theInternational Criminal Court (PrepComm) states that the requirement thatthe accused have knowledge of a widespread or systematic attack against anycivilian population “should not be interpreted as requiring proof that theperpetrator had knowledge of all characteristics of the attack or the precisedetails of the plan or policy of the State or organization.”1000In addition, thePrepComm states that “in the case of an emerging widespread or systematicattack against a civilian population . . . this mental element is satisfied if theperpetrator intended to further such an attack.”1001Therefore, the accusedmust have either known that the conduct was part of a widespread or systematicattack, or must have intended the conduct to be part of a widespread orsystematic attack.1002This latter interpretation of themens rearequirement is“in the nature of ‘general intent’ and not ‘specific intent’ as required in theGenocide Convention.”1003Finally, the Rome Statute expands the discriminatory grounds on whichsomeone may be found guilty of persecution as a crime against humanity toinclude cultural, national, ethnic, and gender-based grounds. On the otherhand, customary international law requires only that the persecution becommitted on political, racial, or religious grounds. In addition, the RomeStatute requires that the accused intends to commit the underlying prohibitedacts with the requisite knowledge.Article 7(2) of the ICC Statute.Report of the Preparatory Commission for the International Criminal Court, Addendum,Part II (Finalized draft text of the Elements of Crimes), Nov. 2, 2000, at 8.998SeeHwang,supranote 939, at 502.999See Kunarac, Kovac, and Vukovic (AC), supranote 938, at�97.1000Addendum: Part II - Finalized draft text of the Elements of Crimes,Report of the PreparatoryCommission for the International Criminal Court,p. 8, UN Doc. PCNICC/2000/1/Add.2,Nov. 2, 2000.1001Id.1002Id.1003SeeBASSIOUNI,supranote 922, at fn. 76;See Tadic (AC), supranote 940, at�292-296 (overrulingTrial Chamber’s finding that crimes against humanity in customary international law contained anexpress requirement of a discriminatory intent, and distinguishing the Secretary General’s Reportwhich also stated the requirement).996997

D. Analysis of the Choice of Definitions for CrimesAgainst HumanityTo bring a claim of crimes against humanity, the following elements mustbe satisfied under customary international law:1. There must be an attack;2. The acts of the accused must be part of the attack;3. The attack must be directed against any civilian population;4. The attack must be widespread or systematic; and5. The accused must know that the acts constitute part of apattern of widespread or systematic crimes directedagainst a civilian population, know that the accused’sacts fit into such a pattern, and intend to commit theunderlying prohibited act.1004Although the Rome Statute’s definition binds only state parties and theICC, it serves as a compelling statement of customary international law.1005The Rome Statute’s definition of crimes against humanity “reflects thedevelopment of customary international law requiring neither a nexus betweencrimes against humanity and armed conflict, nor a requirement of discriminatoryintent.”1006In addition, the Rome Statute requires the same elements listedabove to bring a claim of crimes against humanity under the Statute. However,it enumerates more prohibited acts and provides additional grounds fordiscrimination for the crime of persecution. Both of these additions expandthe scope of the Rome Statute beyond the boundaries of customary internationallaw. The one exception to the Rome Statute being broader than customaryinternational law is the requisite policy element inserted in the definition of“attack directed against a civilian population.”1007Each of these differences isdiscussed below.Expansion of Prohibited ActsThe Rome Statute adds enforced disappearance of persons and the crime ofapartheid to the list of enumerated prohibited acts that would constitute acrime against humanity if committed under the requisite circumstances. In

addition, the Statute explicitly defines what constitutes each of the enumeratedacts; conversely, the ICTY and the ICTR statutes had to reference internationaland domestic criminal law to define these acts.Expansion of Discriminatory Grounds for PersecutionThe discriminatory grounds for persecution under the Rome Statute arenot limited to “political, racial, or religious grounds” as they are undercustomary international law.1008The Rome Statute expands the scope of thedefinition beyond customary international law to include national, ethnic,cultural and gender-based grounds.1009New Policy ElementThe term “attack directed against a civilian population,” defined in Article7(2)(a), is a “course of conduct involving the multiple commission of actsreferred to in paragraph 1 against a civilian population, pursuant to or infurtherance of a State or organizational policy to commit such an attack.”1010Further, the Rome Statute restricts the definition of “attack” to “multiplecommission of acts,” while in customary international law, committing singleprohibited acts in the correct circumstances constitute an attack.1011Current customary international law does not require that a policy or planexist as an element of crimes against humanity, though it may be relevantevidentially in demonstrating that the attack was widespread or systematic.1012Older jurisprudence indicates that customary international law when theRome Statute was drafted did include a requisite policy element.1013However,as demonstrated above, the definition of crimes against humanity has evolvedsince 1945, and it has continued to evolve since 1998. Initially, crimes againsthumanity in customary international law arguably required the existence of astate plan or policy.1014Eventually, crimes against humanity evolved to requirethe existence of a policy or plan by either a state or a non-state entity.1015Payam Akhavan,Contributions of the International Criminal Tribunals for the Former Yugoslaviaand Rwanda to Development of Definitions of Crimes Against Humanity and Genocide,94 AM.SOC’YINT’LL. PROC. 281 (2000).1009SeeArticle 7(1).1010SeeArticle 7(2).1011SeeBadar,supranote 956, at 107.1012See Kunarac, Kovac, and Vukovic (AC), supranote 938, at�98;Kamuhanda (TC), supranote979, at�665;Kajelijeli (TC), supranote 955, at�872;Semanza (TC), supranote 966, at�329;Krnojelac (TC), supranote 938, at�58;Simic, Tadic, and Zaric (TC), supranote 965, at�44.1013See, e.g., Akayesu (TC), supranote 969, at�580 (finding that “[t]here is no requirement that thispolicy must be adopted formally as the policy of a state . . . There must however be some kind ofpreconceived plan or policy.”);Kayishema and Ruzindana (TC), supranote 970, at 124 (holdingthat “for an act of mass victimization to be a crime against humanity, it must include a policy” orplan developed by either state or non-state actors);Prosecutor v. Musema(Case No. ICTR-96-13-A),Judgment, Jan. 27, 2000, at�204 (followingAkayesuandKayishema and Ruzindana).1014See Kayishema and Ruzindana (TC), supranote 970, at�125.1015See id.at 124.1008

Similarly, customary international law no longer requires a plan or policyelement.1016However, the recent jurisprudence does not consider the provisionsof Article 7(2)(a) of the Rome Statute; therefore, it remains uncertain whetherfuture tribunals will require the existence of a policy or plan in accordancewith the Rome Statute.ConclusionThough no universally recognized definition of crimes against humanityexists, a comprehensive definition of crimes against humanity emerges fromanalyzing the ICTY and ICTR jurisprudence and Rome Statute with regard tothe circumstantial elements of the crime, but with somewhat impreciseparameters. The 1998 Rome Statute codified international law’s customarydefinition of crimes against humanity and added its own additional elements.These additional elements expand the scope of the crime to include additionalprohibited acts and discriminatory grounds for persecution. Despite thesedifferences between the Rome Statute’s definition and customary internationallaw’s definition of crimes against humanity, the significant commonalitybetween them identifies the elements that must be satisfied in order to bring aclaim of crimes against humanity against a state that is not a signatory to theRome Statute.

Appendix IV: Lessons from Past Security CouncilInterventionsArticle 39 of Chapter VII authorizes the Security Council to intervene inmatters within the domestic jurisdiction of a state where a “threat to thepeace, breach of the peace, or act of aggression” is occurring1017Accordingly, the Security Council may take those measures necessary “tomaintain or restore international peace and security”1018By definition, if acountry-specific situation is deemed a “threat to the peace” under ChapterVII, then it would also meet the lower threshold for a Chapter VI intervention.Under Chapter VI, the Security Council “may investigate . . . any situationwhich might lead to international friction . . . to determine whether thecontinuance of the . . . situation is likely to endanger the maintenance ofinternational peace and security.”1019This report concludes that the situationin North Korea constitutes a non-traditional threat to the peace; therefore, itis a situation that may lead to international friction that would provide supportfor the Security Council adopting a resolution under its Chapter VI powers.Relying on Chapter VII, the Security Council has intervened in countrieswhen it regarded the situations in those countries as a threat to the peacerequiring action by the Security Council to protect and preserve internationalstability. While the Security Council has no set criteria defining what constitutesa threat to the peace, a review of initial resolutions1020passed by the SecurityCouncil in response to particular situations may provide guidance about theconditions or combinations of conditions the Council perceives and defines asa “threat to the peace.”In reviewing all cases in which the Security Council determined that athreat to peace existed, it is clear that each case has varying circumstances.However, the Council’s past actions in such countries as Sierra Leone,Afghanistan, Yemen, Haiti, Rwanda, Liberia, and Cambodia reveal clear patterns.Reviewing the case histories and the initial Security Council resolutions forthe aforementioned countries helps to identify the following list of factors(Determining Factors) that encompass the Security Council’s primary reasonsUN Charter, art. 37.Id.1019UN CHARTER, art. 34 (emphasis added).1020This report only examines the justification for initial intervention by the Security Council in aparticular situation in a country. In assessing the appropriateness of action in North Korea, it isnecessary to review the initial Security Council intervention when it adopted a resolutionresponding to a particular situation in a particular country, not subsequent action which wouldhave responded to a further deterioration in the situation. For example, even though the situationin Rwanda ultimately resulted in a genocide being committed by the government and the insurgentarmy actually acted to put it down, we are only discussing the facts that existed at the time of theSecurity Council’s initial resolution, responding to the conflict stemming from the insurgency in 1990.10171018

for determining that a “threat to the peace” exists warranting Council action:(1) widespread internal humanitarian/human rights violations; (2) substantialoutflow of refugees; (3) other cross-border problems – for instance, drugtrafficking; (4) conflict among governmental bodies and insurgent armies or armedethnic groups; and (5) the overthrow of a democratically elected government.1021In the various initiatives taken by the Security Council with respect tothese countries, no single factor was dispositive to its decision to intervene.Instead, the Security Council considered the totality of the circumstances ofeach country’s situation in determining that a threat to the peace existed.Assessment of Initial Factors Resulting in UN Security Council InterventionResolution Human./RefugeeOther (Drug ConflictHuman Rights Outflows Trafficking) amongViolationsFactionsSierraS.C. 1132Leone(1997)Afghanistan S.C. 1076(1996)YemenS.C. 924(1994)HaitiS.C. 841(1993)RwandaS.C. 812(1993)LiberiaS.C. 788(1992)Cambodia S.C. 668(1990)Overthrow ofDemocraticGovernment

A. Sierra LeoneSierra Leone has a tumultuous history. In 1996, after suffering a successionof military coups, the country’s situation appeared to be improving. Forexample, parliamentary and presidential elections were held for the first time,resulting in a democratically elected government under President AhmadTejan Kabbah.1022Moreover, the rebel group Revolutionary United Front(RUF) signed a peace agreement, known as the Abidjan Agreement, with thenew democratic Government of Sierra Leone.1023These positive steps, however,were short lived. Talks relating to the Abidjan Agreement broke down whenthe RUF refused to negotiate.1024In 1997, the RUF overthrew the democraticallyThese resolutions include S.C. RES. 1132, S/RES/1132 (1997) (Sierra Leone); S.C. RES.1076, S/Res/1076 (1996) (Afghanistan); S.C. RES. 841, S/RES/841 (1993) (Haiti); S.C. RES.924, S/RES/924 (1994) (Yemen); S.C. RES. 812, S/RES/812 (1993) (Rwanda); S.C. RES. 788,S/RES/788 (1992) (Liberia); S.C. RES. 668, S/RES/668 (1990) (Cambodia) [hereinafter S.C.RES. (Number)].1022Id.1023UN Doc. S/PV.3643 (1996); UN Doc. S/PV.3720 (1996).1024UN Doc. S/PV3809 (1997).1021

elected government, sending President Kabbah into exile.1025The RUF tookcontrol of Sierra Leone, suspended the constitution, banned demonstrations,and abolished all other political parties.1026The ensuing conflict between the RUF and the ousted government resultedin mass human rights violations by the ruling RUF, including rape and murderof civilians.1027The destruction of schools, health facilities, water supply systems,and transportation infrastructure compounded the humanitarian crisis.1028More than 1.5 million people were displaced due to the conflict and themass human rights violations.1029Approximately 361,000 refugees soughtasylum in Sierra Leone’s neighboring countries, primarily in the Republic ofGuinea and in Liberia.1030This onslaught of refugees “overstretched theeconomy of Guinea and posed great difficulties to the political and socialstability of the nation.”1031The Security Council determined that the deteriorating situation in SierraLeone posed a threat to international peace and security in the region. Inresponse, the Security Council adopted Resolution 1132, demanding amongother things that “the military junta take immediate steps to relinquish powerin Sierra Leone and make way for the restoration of the democratically electedGovernment and a return to constitutional order.”1032Moreover, the SecurityCouncil noted that it was “[g]ravely concerned at the continued violence andloss of life in Sierra Leone following the military coup . . . the deterioratingconditions in that country, and the consequences for its neighbors.” TheSecurity Council called upon the junta “to end all acts of violence and to ceaseall interference with the delivery of humanitarian assistance to the people ofSierra Leone.”1033B. AfghanistanFollowing the Soviet Union’s withdrawal from Afghanistan in 1989, fightingamong various factions ensued and the country became divided into severalSeeUN Doc. S/PV.3797 (1997) (stating that after seizing power, the group involved in thecoup released convicts from prisons and allowed the RUF into Freetown, where they lootedproperty and murdered and raped civilians).1026Timeline Sierra Leone,BBC NEWS, at http://news.bbc.co.uk/1/hi/world/africa/country_profiles/1065898.stm , last updated Nov. 11, 20041027UN Doc. S/1997/80 (1997).1028Id.1029UN Doc. S/1997/80 (1997).1030Id. See alsoUN Doc. S/PV.3797 (1997) (stating that refugees also had fled to Ghana, Nigeria,Côte d’Ivoire, Gambia, and other countries in the subregion).1031SeeUN Doc. S/PV.3797 (1997) (explaining that the Republic of Guinea was alreadyoverburdened by the number of refugees it had received from Liberia).1032SeeS.C. RES. 1132,supranote 1021 (expressing in the Resolution that the Security Council“deplor[es] the fact that the military junta has not taken steps to allow the restoration of thedemocratically elected Government and a return of constitutional order”).1033S.C. RES. 1132,supranote 1021.1025

independent zones, each ruled by its own faction.1034In 1996, although aweakly secured government existed in Afghanistan, one faction, the Pakistani-supplied Taliban, invaded and took control of Kabul, declaring itself thelegitimate government of the Islamic Emirate of Afghanistan.1035After invadingKabul and taking over most of the country, the Taliban carried out mass humanrights violations. More than two million refugees fled to neighboring countries.1036On October 22, 1996, the Security Council adopted Resolution 1076,expressing concern over hostilities in Afghanistan that had caused civiliancasualties and an increase in refugees and displaced persons – all of which theSecurity Council believed seriously endangered the region’s stability and peacefuldevelopment.1037The resolution urged all Afghan parties to resolve theirdifferences through peaceful means and achieve national reconciliation throughpolitical dialogue.1038It also called on all states to refrain from outsideinterference in Afghani internal affairs, including the involvement of foreignmilitary personnel and the supply of arms and ammunition to parties to theconflict in Afghanistan, and instead to use their influence to encouragecooperation by the Afghan parties with the UN Special Mission to Afghanistan.1039Furthermore, the Security Council expressed concern about the abuses ofhuman rights and called upon the leaders of the Afghan parties to halt suchactivities as terrorism and drug trafficking, which endangered the stability ofthe region.1040

C. Republic of YemenThe Republic of Yemen fell into crisis on May 5, 1994, when separatistrebels launched a civil war against the Government of Yemen.1041The rebelswere members of the former totalitarian regime that had lost Yemen’s firstparliamentary elections in April 1993. They sought to “establish a State in thesouth under the leadership of the rebel Ali Salim al-Bidh.”1042These rebelstook control of Aden, the economic and commercial hub of Yemen, and haltedthe operations of the country’s government.1043Consequently, “the countryalmost fell into a state of complete anarchy, the economic, social and healthsituation deteriorated, the security situation worsened, and the most heinousviolations of human rights took place in the prisons of Aden that theseCountry Study: Afghanistan, Federal Research Division, Library of Congress, athttp://lcweb2.loc.gov/frd/cs/aftoc.html#af0126, last visited Sept. 1, 2005.1035Id.1036Situation of Human Rights in Afghanistan 1975/74,UN Commission on Human Rights,E/CN.4/1995/176, Mar. 8, 1995.1037SeeS.C. RES. 1076,supranote 1021.1038See id.1039See id.1040See id.1041UN Doc. S/PV.3394 (1994).1042UN Doc. S/1994/642 (1994).1043Id.1034

persons subjected to their direct control.”1044During the armed conflict, largenumbers of innocent civilians were killed and property was destroyed.1045Yemen’s political parties, however, objected vociferously to proposals ofoutside intervention, believing this would only complicate matters and wouldconstitute an “assault on territorial unity and sovereignty of the Republic ofYemen” and an alleged “violation of international law.”1046Despite Yemeniprotests, the Security Council adopted Resolution 924 on the grounds thatthe continuance of the situation could pose a threat to peace and security inthe region.1047In the resolution’s text, the Security Council noted its deepconcern for the tragic deaths of innocent civilians and requested that theparties cease hostilities immediately and negotiate a peace.1048

We wish to call your attention . . . to our absolute rejection of anyintervention by the Council in what is taking place in our country. This isan internal matter, and what is happening is an endeavor by the entirepeople to preserve the unity that guarantees its stability and the stability ofthe region in the face of a separatist rebellion aimed against the country’sunity, constitutional legitimacy and stability.See alsoUN Doc. S/1994/642 (1994) (“What is happening in Yemen is not a war between northand south, as some claim, or between one State and another. It is a war between the people asrepresented by its lawful and constitutionally elected leadership and a small rebel separatist groupof Socialist Party leaders.”)1047SeeS.C. RES. 924,supranote 1021 (calling for an immediate ceasefire and urging the partiesto resume negotiations).1048Id.1049SeeUN Doc. S/25942 (1993) (Letter from the Permanent Representative of Cuba).1050UN Doc. S/PV.3238 (1993).

refuge elsewhere.”1051Some 40,000 Haitians fled the country as a result of therepression, with many seeking refuge in Cuba.1052On October 11, 1991, the General Assembly adopted a resolution callingon the military regime to re-establish constitutional order in Haiti andreinstate President Aristide.1053The Organization of American States (OAS)attempted to engage the regime in negotiations, but the regime rejected itsproposals.1054To provide support to the efforts of the OAS and the UNGeneral Assembly, the Security Council adopted Resolution 841 in 1993, inwhich the Security Council stated that it “[d]eplor[ed] the fact that, despiteefforts of the international community, the legitimate Government ofPresident Jean-Bertrand Aristide has not been reinstated.”1055Noting thehumanitarian crisis in the text of the Resolution, the Security Council expressedits concern that “the persistence of this situation contributes to a climate offear of persecution and economic dislocation which could increase the numberof Haitians seeking refuge in neighboring member states and convinced that areversal of this situation is needed to prevent its negative repercussions on theregion.”1056The Security Council thus determined that the situation in Haitiposed a threat to international peace and security in the region.1057

Id.Id.;seealsoUN Doc. S/25942 (1993) (explaining that “Cuba, as one of Haiti’s closest neighbors,has received thousands of refugees from this long-suffering country, perhaps more than any otherState of the region, and has never considered that this flow threatened peace and security in thegeographical area in which it is situated, but has viewed it as a purely humanitarian questionwhich must be resolved, as it has been doing to date, through the international organizations andbodies which deal with refugees and displaced persons”).1053UN Doc. S/PV.3238 (1993).1054See id.(commending His Excellency Mr. Dante Caputo, Special Envoy of the Organization ofAmerican States, and the United Nations for its efforts in attempting to achieve a settlement withthe regime).1055S.C. RES. 841,supranote 1021 (imposing a trade embargo on the country).1056Id.1057Id.1058SeeUN Doc. S/PV.3183 (1993) (providing examples of human rights violations, such as“calling farmers to a meeting before massacring them with machine-gun fire; shutting-up scores ofpeople in a house before killing them with grenades or explosives; disemboweling women and oldpeople; shootings in displaced-persons camps; dismemberment, gouging out of the eyes andcutting-off breasts; binding people hand and foot; and so on.”)1059SeeUN Doc. S/25363 (1993) (explaining that the N’sele ceasefire agreement was amended atGbadolite on Sept. 16, 1991, and at Arusha on Jul. 12, 1992).10511052

resumed.1060The fighting ultimately resulted in the displacing approximatelyone million people and left one-seventh of the population without shelter.1061After listening to Rwanda’s Permanent UN Representative’s plea forassistance, in March 1993, the Security Council passed Resolution 812, thefirst resolution adopted on Rwanda, on the basis of its “[g]rave concern [over]the fighting in Rwanda and its consequences for international peace andsecurity.”1062The Security Council asserted that it was “[a]larmed by thehumanitarian consequences of the latest resumption of the fighting in Rwanda,in particular the increasing number of refugees and displaced persons, and bythe threats to the civilian population.”1063The resolution called on thegovernment and the RPF to refrain from interfering with the provision ofhumanitarian aid and the return of displaced persons and to comply strictlywith international humanitarian law.1064The resolution also “[s]tressed theneed for a negotiated political solution, in the framework of the agreementssigned by the parties in Arusha” and set forth a framework for beginning asettlement to the conflict.1065F. LiberiaIn 1989, Liberia became engulfed in a civil war between the NationalPatriotic Front of Liberia (NPFL), led by Charles Taylor, and the UnitedLiberation Movement of Liberia (ULIMO). Much of the fighting was“inspired by the memory of the former President of Liberia,” who was killedduring the war.1066As both sides struggled to seize political power, thousandsof civilians were killed, raped, tortured, and taken hostage.1067Those whosurvived endured sickness and famine and were often forced to “wander theforest for days, ferreting for food while fleeing from the fugitive warlordCharles Taylor and his rebel fighters.”1068Id.Id.1062S.C. RES. 812,supranote 1021.1063The Security Council became particularly concerned about the destabilizing effects of thesituation in Rwanda in light of the ongoing crisis in Somalia.See id(stating that the Moroccodelegation was particularly concerned that the “tragic developments . . . could lead to a greaterdeterioration of the situation in that country, as we remember all too well the past and presenthorrors experiences by the people of the brotherly country of Somalia”).1064Id.1065See id.(asserting that the UN should examine the steps it could take to assist in facilitating apolitical settlement and in avoiding the onset of further fighting).1066S.C.,Provisional Verbatim Record of the 3138th Meeting,UN Doc. S/PV.3138 (1992).1067See id.(asserting that Charles Taylor and the NPFL had committed numerous war crimes andcrimes against humanity, including murdering five American nuns and over 160 schoolchildren).1068Id.According to the Permanent Representative of Sierra Leone: “our national economy is inruins, as the government has had to spend hard-earned resources to defend our country fromCharles Taylor, who for more than a year now has been occupying and ravaging some of themost productive areas of my country in terms of agriculture and diamond production, lootingand smuggling those products to acquire arms to continue his armed aggression and to enrichhimself personally.”10601061

Neighboring countries expressed concern that “the war will spread to theentire West African sub-region if the protagonists continue . . . to speak thelanguage of arms”1069rather than “dialogue and reason.”1070West Africa alsocontains a prosperous drug trade, and other states in the region feared thatLiberia would be turned into a regional “narcocenter for drug trafficking.”1071The situation in Liberia posed a particularly severe threat for neighboringSierra Leone, which received thousands of the refugees who fled fromLiberia.1072When Sierra Leone permitted Liberian peacekeeping forces to useits country as a base, the NPFL instigated an armed attack on Sierra Leone.1073The Economic Community of West African States (ECOWAS) and otherinternational organizations attempted to broker a peaceful settlement betweenthe parties, such as facilitating the execution of a ceasefire agreement. Theseattempts failed and the situation deteriorated.1074Finding that the situation inLiberia clearly threatened international peace and security, the SecurityCouncil passed Resolution 788 on November 19, 19921075, denouncing theviolations of the ceasefire agreement and demanded that the parties abide bythe already established settlement framework.1076The Council also noted thedeterioration of the situation hindered the “creation of conditions conduciveto the holding of free and fair elections.”1077

Id.Countries in the region feared that the conflict was “transforming West Africa into anarms market.”1070See id.(providing the statement of Mr. Holo, Permanent Representative of Benin, regardingthe crisis in Haiti).1071See id.(relaying the statement of Mr. Koroma, Permanent Representative of Sierra Leone, whostated that “[t]oday it is Sierra Leone that is under attack, but there are other small and equallyvulnerable countries in the subregion that should not be allowed to fall prey to a fugitive warlord[(Charles Taylor)] whose aim is to make Liberia a narcocentre for drug trafficking in our region ifhe is once able to shoot his way into power in Monrovia”).1072See id.(explaining that Sierra Leoneans welcomed Liberian refugees into their homes, schools,hospitals, and places of employment).1073See id.(asserting that Charles Taylor launched this attack because Sierra Leone refused to allowhim to use their country for his weapons trade).1074UN Doc. S/PV.3138 (1992). In May 1990, the Standing Mediation Committee of ECOWAStook steps to establish a ceasefire, formed a group to monitor the ceasefire, created a transitionalgovernment, gathered emergency funds for ECOWAS, and created an observer group to monitorelections. Six months later, ECOWAS established a peace plan for Liberia and the sub-region. Inthe following two years, ECOWAS held meetings in Yamoussoukro and Geneva to solidify thesettlement framework. Despite these, and various subsequent efforts on the part of ECOWAS,the NPFL refused to adhere to the peace process.1075S.C. RES. 788,supranote 1021.1076See id.(noting that these accords are the Yamoussoukro IV Accord and the Final Communiquéof the Informal Consultative Group Meeting of ECOWAS Committee of Five on Liberia andasserting the Security Council’s conviction that the Yamoussoukro IV Accord provided the mostcomprehensive framework for a peaceful settlement; the Accord sought to establish the conditionsconducive to allowing free and fair elections).1077See id.1069

G. CambodiaThe Security Council issued a variety of resolutions in the 1980s requestingwarring factions in Cambodia to end the conflict and reach a peacefulsettlement. In 1990, the Council stepped beyond a simple acknowledgementof the situation and adopted Resolution 668 in which the Council specificallytried to facilitate the peace process in Cambodia by providing guidance.1078Resolution 668 endorsed a framework for a political settlement and encouragedthe parties to adhere to an agreement to form a “Supreme National Council asthe unique legitimate body and source of authority in which, throughout thetransitional period, the independence, national sovereignty and unity ofCambodia is embodied.”1079

AcknowledgementsPresident Havel, Prime Minister Bondevik, and Professor Wiesel would like to thank DLA Piperfor its pro bono assistance in preparing, publishing, and disseminating this report. In particular,special thanks are due to attorneys Anthony Ashton, Elizabeth J. Brown Fore, Ann DePriester,Jared Genser, Ellen S. Ginsberg, Matt James, Sheldon Krantz, Anthony Lehman, C. DylanSanders, Michael S. Tracy, and Gina Vetere; former summer associates Catherine Campbell,Katrina Emmons, Kristen Leanderson, Alexandra Marzelli, and Colin Parent; former summerclerk Jennifer Harkin; and staff Lynn Bryant, Margot Finn, Ted Loud, Jennifer Maginnis,Melissa McGinn, and Marion Nowak. Special thanks are also due to Debra Liang-Fenton withthe U.S. Committee for Human Rights in North Korea. Numerous legal and North Korea expertsprivately provided invaluable assistance to this project and informed the content. For theirmany important contributions, DLA Piper and the Committee are very grateful.