A change of leadership in South Korea is likely to mean new engagement between Seoul and Pyongyang. At this time in particular, the record of North Korea’s human rights violations must not be forgotten. 

North Korea is worthy of the attention of all of us because it is a matter that has undoubtedly reached a dangerous moment. From the point of view of achieving peace and security in the future, it is therefore appropriate that we should examine the preconditions for peace with North Korea: observance of universal human rights and accountability for crimes against humanity.

I am not, and never have been, an expert in military matters. I am not, and never have been, an expert in geopolitical analysis. If I have an expertise relevant to North Korea, it is the expertise that led to my appointment by the president of the United Nations Human Rights Council (UNHRC) to be the chair of the Commission of Inquiry (COI) on Human Rights in the Democratic People’s Republic of Korea (DPRK). It is an expertise in international human rights law.

The COI was given the task to examine a mandate which had nine headings relating to particular activities that were thought to require examination from the human rights point of view. We were not at large. We were not authorised to examine the geopolitical or security concerns of North Korea to the world. Our focus was narrow and particular. It was the human rights focus.

We met for the first time in July 2013. The report was completed in just over six months and it was delivered within budget and on time. It was unanimous. The report went through the mandate headings and made findings on all of the subjects of the mandate, among them the political freedoms and absence thereof in North Korea; the inability to travel within the country without the permission of a local official in the village and the severe restrictions on international travel; and the very great problems of food supply.

The report created something of a sensation in the UNHRC. It then attracted very strong votes. Generally, the Human Rights Council is deeply divided about human rights issues and there is a geopolitical alignment of countries as to how they should respond. But the votes for the COI on DPRK were extremely strong. They supported the report and sent it off to the General Assembly (GA) with a proposal that the GA should pick up our suggestion and send the matter off to the Security Council. This is a very rare thing to do in the case of human rights concerns because they are inevitably very political and very divisive. However, the GA voted very strongly to support the recommendations of the COI.

It was at that stage that the DPRK began to be very concerned about our report. We had recommended, in the report, that the case of North Korea should be referred to a prosecutor at the International Criminal Court. So far, there’s been no resolution placed before the Security Council to secure that end.  That is because it has been made reasonably clear that China and possibly the Russian Federation would not agree. Therefore, that form of accountability has been effectively vetoed to this time.

The failure to secure accountability in this way led to a recommendation to the UNHRC for a new committee of experts to look again at how this could be done. The report by the committee of experts was delivered to the UNHRC in February 2017. It has recommended that there should be further exploration of the possibility of a special tribunal and of educative means, including amongst the North Korean community in South Korea, to review what is happening. It also recommended that the UNHRC field office in South Korea continue the collection of testimony from people who have suffered in North Korea and do that in a form that could ultimately become the basis of a brief for a prosecutor, in whatever tribunal the case may ultimately end up.

On the giving of the report to the UNHRC, the COI’s mandate formally finished. But there have been many occasions to continue my involvement because this is a great puzzle that is of concern to people in many countries of the world. It is a puzzle about what can be done in the face of such intransigence on the part of the country concerned; and what can be done that will not open up the risks of even greater security problems and the possible use of weapons which will be very dangerous for the DPRK itself, and for the Republic of Korea, China and the surrounding countries.

I was asked to attend a meeting in the National Assembly of the Republic of Korea in March. What was especially interesting at the session at the National Assembly was the response of those people who were present from the opposition parties to the question of what should now be done. This could be very important because most observers in South Korea expect that the opposition parties will win the election on 9 May 2017 to replace former President Park Geun-Hye, who has been removed from office following constitutional impeachment.

The view that was expressed by one of the opposition representatives was that the role of South Korea is not to harass North Korea over its human rights record; it is to improve the outlook of human rights in North Korea and to assist North Korea to come to a realisation about human rights for itself. It was said that it would be quite wrong for South Korea to do more than that.

The problem as it seems to me, and I expressed it, is that North Korea is a country without access to the internet and without access to any civil society organisations that are not controlled by the government. It is therefore very difficult to conceive of how they could reach their own views except the views that are given to them by the authorities in power.

Other things were said which were concerning about how the opposition might approach the issue. Still, it is an interesting phenomenon, which we have seen in our own country, that once people are elected to government they then have the responsibilities of government and they react accordingly. One hopes then that the responsibilities will descend upon people who will trouble to read the report of the UN COI on the DPRK. If they do that, they will come to the conclusion that leaving well enough alone is not really a sensible policy. Even from the point of view of security, it is potentially a dangerous policy. Something has to be done to respond to the situation in North Korea.

The UN High Commissioner for Human Rights, Prince Zeid Ra’ad Al Hussein, in his speech at the opening of the most recent session of the UNHRC, pointed out that in the charter of the UN, the preamble contains the three great principles for the formation of the UN. The first of them is observance of universal human rights. He said that it is important to realise that respect for universal human rights is interconnected with peace and security. That is undoubtedly so. Without protection and accountability for human rights, the dream of peace and security for the Korean Peninsula will remain illusory.

The present situation in North Korea is dangerous to the human rights of the people of that country, but also dangerous for the peace and security of the region and the world. That is why the world, in its understandable desire to secure a peaceful resolution of the dangers of North Korea, must not forget the report of the UN inquiry into human rights in that country. No human rights accountability. No peace.

The Hon Michael Kirby AC CMG FAIIA is a former justice of the High Court of Australia, where he served from 1996 to 2009. From 2013 to 2014 he led the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea. Michael Kirby is a fellow of the Australian Institute of International Affairs.

This is an edited extract from a speech by Michael Kirby to the Australian Institute of International Affairs NSW on Tuesday 4 April 2017.