1 2 Legal Strategies for Protecting Human Rights in North Korea by Paolo Cammarota, Joe Crace, Kim Worly, and Haim Zaltzman (attorneys at Skadden, Arps, Slate, Meagher & Flom LLP) EXECUTIVE SUMMARY This handbook describes the options available to human rights NGOs seeking to pursue international legal action against North Korea. North Korea presents an extreme version of the challenge that often faces non-governmental organizations. It has a daunting record of human rights abuses and atrocities. However, at the same time, North Korea is an isolated hermit state, extremely resistant to outside pressure. Non-governmental organizations (NGOs) tracking human rights abuses around the world are frustrated by the difficulty of doing something about those abuses. However, the international legal system offers a variety of avenues for action which NGOs can pursue. Pursuing these avenues helps link NGOs to the larger framework of international legal institutions. This report explores these legal avenues. It does so by considering what specific options are available in the case of North Korea, exploring how those options would be pursued, and analyzing the practical advantages and difficulties of each one. The options presented are: Referral to the International Criminal Court Referral to the U.N. Security Council Working with the U.N. Human Rights Council Taking action under an international covenant to which North Korea is a party: the International Covenant on Civil and Political Rights the Convention on the Elimination of All Forms of Discrimination Against Women the Convention on the Rights of the Child the International Covenant on Economic, Social, and Cultural Rights Pursuing a lawsuit under the Alien Tort Claims Act or similar U.S. law This is by no means an exhaustive list. For example, other nations have their own domestic analogs to the U.S. Alien Tort Claims Act, and different states are parties to different international treaties and conventions. However, this report illustrates the kinds of considerations necessary when evaluating the options available under international treaties or when suing the officials of one country in the courts of another. For the first four of these options, the report explores: General description of the option The legal standards for action to be taken The violations that North Korea has committed of those standards The institutional process involved in that option Possible outcomes from the option Political considerations In addition, in the discussion of the Alien Tort Claims Act, the report examines the process of filing a lawsuit for claims of abuse in another country, and explores the advantages and disadvantages of such an action. The goal of this handbook is to assist NGOs concerned about the human rights situation in North Korea, and also to provide a general resource for NGOs concerned about human rights around the world. Hopefully, NGOs focused on North Korea will be assisted by this report and its consideration of practical ways that NGOs can work with the international legal system. In addition, other NGOs can adapt this report to their own needs. By presenting practical information about international legal options, this report hopes to provide NGOs with the tools to pursue such options themselves. Further, by analyzing the advantages and disadvantages of each option, this report attempts to illustrate how NGOs may conduct their own analysis of which legal options are most helpful in their own situations, and thus help NGOs address the challenge of states, like North Korea, that are not responsive to NGO criticism of abuses of human rights. 4 INTRODUCTION For over sixty years, the Democratic People’s Republic of Korea has engaged in the systematic, flagrant abuse of nearly every human right recognized by international law. Citizens found guilty of “crimes” against the regime often face imprisonment where they are subjected to torture, below subsistence level food rations, forced labor, and sometimes execution. Despite widespread condemnation of these violations by individuals, states, and non-governmental organizations (NGOs), North Korea’s isolation has made it difficult for external forces to have much impact. It is therefore a challenge for NGOs concerned about conditions in North Korea to take productive action. The extreme situation in North Korea is emblematic of a general problem facing NGOs concerned about human rights. In the face of human rights violations and atrocities around the world, NGOs are a vital safeguard for the oppressed and downtrodden. NGOs, however, have little formal power themselves, and can face challenges in ameliorating the abuses they seek to uncover and document. The modern system of international law, however, provides myriad avenues for NGOs to pursue against serial human rights abusers and rogue states. This report analyzes this diverse group of options, their respective advantages and disadvantages in the case of North Korea, and presents a brief assessment of their feasibility and effectiveness in today’s political climate. The case of North Korea is used to illustrate methods NGOs in general can follow to defend human rights in other countries. The usefulness of each method will, naturally, depend on the specific facts that apply, and NGOs must exercise their own judgment as to which methods are most likely to be effective. By pursuing these international legal avenues, NGOs can link with the broader international legal system to fight against abuses, overcoming the problem of NGO lack of resources. After briefly identifying relevant facts regarding North Korean history, politics, and human rights abuses, this report discusses the avenues available to NGOs through international organizations and U.N. bodies, action under human rights treaties, and the possibility of applying domestic law to foreign human rights violations. The report examines the following international legal options: (i) possible referral of North Korea to the International Criminal Court; (ii) referral of the situation in North Korea to the U.N. Security Council;1 (iii) working with the Human Rights Council; (iii) action under the International Covenant on Civil and Political Rights; (iv) action under the Convention on the Elimination of All Forms of Discrimination Against Women; (v) action under the Convention on the Rights of the Child; (vi) action under the International Covenant on Economic, Social, and Cultural Rights; and (vii) pursuing a lawsuit under the Alien Tort Claims Act or similar U.S. law. Ultimately, this report describes the most promising course to pursue for each of these possible legal options: 1 See DLA PIPER US LLP & U.S. COMM. FOR HUMAN RIGHTS IN NORTH KOREA, FAILURE TO PROTECT: A CALL FOR THE UN SECURITY COUNCIL TO ACT IN NORTH KOREA (2006), available at http://www.dlapiper.com/files/upload/North%20Korea%20Report.pdf (last visited Oct. 18, 2007), and available at http://www.hrnk.org/failureToProtect-Report.pdf (last visited Oct. 18, 2007) [hereinafter FAILURE TO PROTECT]. The report explores the possibility of U.N. Security Council action in North Korea in detail. 5 • International Criminal Court: an NGO could encourage member states or the U.N. Security Council to refer North Korea for prosecution. • U.N. Security Council: an NGO could lobby member states to bring a resolution calling for action to be taken regarding human rights in North Korea. • U.N. Human Rights Council: NGOs can push the Council to continue the focus on North Korean human rights begun by its predecessor, the Commission on Human Rights. • U.N. Treaty Bodies: for the four treaty bodies of which North Korea is a member, NGOs can file shadow reports on human rights in North Korea, and provide treaty bodies with independent sources of information. • Alien Tort Claims Act: an NGO could help support a lawsuit under this act by a North Korean victim of abuses, allowing the NGO to use American law to enforce human rights standards. Two of these methods have already been used by NGOs in the case of North Korea. First, the Commission on Human Rights (the predecessor to the Human Rights Council) has issued three resolutions on human rights in North Korea and has appointed a Special Rapporteur to address the situation. Second, of the four U.N. treaty bodies of which North Korea is a member, three have noted the existence of North Korean human rights concerns: the bodies associated with the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Convention on the Rights of the Child. These successes demonstrate the possibilities for NGOs to work with the existing international legal system, and point to the need to continue this work. 6 TABLE OF CONTENTS Executive Summary.........................................................................................................3 Introduction......................................................................................................................5 Table of Contents............................................................................................................7 I. The Factual Case Against North Korea ........................................................................9 II. International Criminal Court.......................................................................................25 III. U.N. Security Council Action.....................................................................................39 IV. Human