Accountability at Last? Exploring Prospects of Universal Jurisdiction on the Korean PEninsula

By Valerie Xu, HRNK Research Intern[1]
Edited by Raymond Ha, HRNK Director of Operations & Research

In 2014, the UN Commission of Inquiry (COI) on the human rights situation in North Korea concluded that “systematic, widespread and gross human rights violations”[2] have been, and are being, committed by the DPRK, its institutions, and officials. Moreover, it stated that many of these violations constitute crimes against humanity, including: “extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation.”[3] Although it has been ten years since, serious human rights abuses continue to be committed in North Korea.

There have been continued attempts to address the human rights situation in North Korea, yet the result leaves much to be desired. While some point to political leaders for turning a blind eye to North Korea’s human rights record in the hopes of improving relations with Pyongyang, others point to the lack of civil society in North Korea as a factor contributing to the difficulty in institutionalizing human rights reforms. Given the absence of civil society and rights consciousness, it is challenging to diffuse human rights within North Korea.[4] Furthermore, the nature of North Korea’s judicial institutions makes it hard to seek accountability through domestic laws and regulations.[5] Even the COI acknowledged that “The perpetrators enjoy impunity. The Democratic People’s Republic of Korea is unwilling to implement its international obligation to prosecute and bring the perpetrators to justice, because those perpetrators act in accordance with State policy.”[6]

When the state ignores or directly perpetuates systematic human rights abuses, external interventions can be rendered fruitless. Existing forums and institutions face not only procedural constraints, but also resistance from both North Korea itself and some other countries. The lack of progress is frustrating, but have we truly exhausted all means? What other venues are available to hold North Korea responsible for its human rights violations? In answering these questions, this piece explores the application of universal jurisdiction to address human rights violations that have occurred in North Korea.


Past Efforts

United Nations System

Addressing North Korean human rights issues at the UN has been helpful in maintaining diplomatic momentum and serving as a solidary and concrete statement of concern towards the DPRK by UN member states. But due to the non-binding nature of resolutions passed at the UN General Assembly and UN Human Rights Council (UNHRC), this approach also has its limits. Some member states are opposed to passing UNHRC resolutions on North Korea because “country-specific content had no place at the UNHRC.”[7] Meanwhile, addressing North Korean human rights violations at the UN Security Council (UNSC) — where resolutions are indeed binding — has also been criticized by some member states which argue that “human rights issues are not under the purview of the UN Security Council to begin with.”[8] Constructive engagement with North Korea has been further complicated as North Korea has continued its missile and nuclear tests in direct violation of UNSC resolutions.[9]

In its recommendations, the COI called for “a Security Council referral of the situation to the International Criminal Court or the establishment of an ad hoc tribunal by the United Nations.”[10] However, North Korea is not a signatory of the Rome Statute of the International Criminal Court, which means that a UNSC resolution is “the only remaining option to refer the case of human rights violations in the DPRK.”[11] Furthermore, permanent members in the UNSC, namely China and Russia, are likely to veto any UNSC resolutions that attempt to do so. Even if the case is referred to the International Criminal Court, only crimes committed after July 1, 2002 — when the Rome Statute went into effect — can be addressed.[12]
 
Responsibility to Protect (R2P)

The concept of Responsibility to Protect (R2P) was developed in the 1990s after the world witnessed mass atrocities unfold in places such as Somalia and Rwanda.[13] The UN invoked the R2P doctrine to intervene in Libya in 2011, which was the first time that use of force was authorized “for civilian protection purposes against the wishes of a host state.”[14] The COI specifically called on the international community to “accept its responsibility to protect the people of the Democratic People’s Republic of Korea from crimes against humanity, because the Government of the Democratic People’s Republic of Korea has manifestly failed to do so.”[15]

However, invoking R2P in the North Korean context faces many difficulties. First, applying the R2P for chronic cases of human rights abuses may be a stretch, as it has only been used in acute situations in the past.[16] Second, using military force against a nuclear-armed North Korea is unthinkable, as “invocation of R2P by the Security Council could lead to the use of weapons of mass destruction or the launching of missiles.”[17] Lastly, due to controversial results of past R2P applications, including the Libyan case, gathering diplomatic support for this option would be difficult. Moscow or Beijing could easily veto any such resolutions on North Korea at the UNSC.
 
Bilateral Sanctions

Bilateral human rights sanctions on North Korean individuals and entities have also been attempted. Pursuant to Executive Order 13722 signed under the Obama administration, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) designated individuals and entities for having “engaged in, facilitated, or been responsible for an abuse or violation of human rights by the Government of North Korea or the Workers’ Party of Korea or any person acting for or on behalf of either such entity.”[18] The European Union also imposed sanctions in 2021 under its Global Human Rights Sanctions Regime on individuals and entities deemed to be involved in human rights abuses in North Korea.[19] North Korea also faces other types of sanctions in addition to those that are imposed on human rights grounds. There are questions, however, about the effectiveness of sanctions on deterring human rights abuses.
 
Engagement and Exchanges

Alternatively, some scholars note that even though the North Korean regime is indeed the main perpetrator of human rights abuses within its borders, the regime is also the only actor that can significantly improve the situation. In other words, any concrete improvements must come from the inside.[20] As such, they argue that non-confrontational and unconditional approaches, such as educational exchanges and technology cooperation, should be considered. These attempts have been made in the past, but they have not led to sustained improvements. Progressive South Korean governments, in particular, have been criticized for their attempts to engage North Korea at the cost of neglecting human rights issues. For example, the Kaesong Industrial Complex (KIC) was a flagship inter-Korean economic collaboration program pursued by progressive presidents during the Sunshine Policy era. However, reports by Human Rights Watch have found that labor practices concerning North Korean workers at the KIC were not up to international standards — standards which South Korea has pledged to as an OECD member, yet were set aside to maintain good relations with their North Korean counterparts.[21] Although these progressive administrations and their policies did achieve certain progress, such as summit meetings and reunions for separated families, these gains were ultimately short-lived and did not yield concrete changes to North Korea’s domestic practices.


Concept of Universal Jurisdiction

The UNHRC has recommended universal jurisdiction in explicitly stating: “Another option to ensure criminal accountability in the Democratic People’s Republic of Korea would be for Member States to pursue investigations and prosecutions based on principles of extraterritorial and/or universal jurisdiction in legal proceedings observing fair trail and due process guarantees.”[22] Furthermore, in her 2024 report, UN Special Rapporteur Elizabeth Salmón recommended that “Prosecutions outside the Democratic People’s Republic of Korea could, if necessary, be based on principles of extraterritorial and/or universal jurisdiction.”[23] The remainder of this article will assess the prospects for applying universal jurisdiction to human rights violations in North Korea within the framework of international law.

Definitions of universal jurisdiction are relatively homogenous in their emphasis on both the nature of the crimes in question and the agency assigned to states. The International Justice Resource Center defines universal jurisdiction as “the idea that a national court may prosecute individuals for serious crimes against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international community or international order itself, which individual States may act to protect.”[24] Under this definition, the bar for state action is not explicit. Human Rights Watch subscribes that universal jurisdiction “is the ability of the domestic judicial systems of a state to investigate and prosecute certain crimes, even if they were not committed on its territory, by one of its nationals, or against one of its nationals.”[25] This definition explicitly refers to the concept of nationality, which might give rise to complications in the case of the two Koreas, as discussed below.

This piece embraces a more general understanding of universal jurisdiction by focusing on how serious crimes under international law can be prosecuted outside of a nation’s territory, while being mindful of potential caveats that may arise.


Theory and Application of Universal Jurisdiction

The legal concept of jurisdiction is three-fold: the power to prescribe, adjudicate, and enforce. Under the post-Westphalian state-centric system, such powers are reserved to states in forms of sovereignty.[26] To put simply, “universal jurisdiction transcends national sovereignty.”[27] It is typically justified on the grounds that “the ‘exceptional gravity’ of the offense ‘affect[s] the fundamental interests of the international community as a whole.’”[28] Caution must be exercised in applying universal jurisdiction. There is a careful balance between respecting a government’s national sovereignty and territorial integrity, and punishing crimes against humanity when a government fails to do so domestically. As such, universal jurisdiction is still seen as a controversial tool that should be used in a cautious manner.

Past applications of universal jurisdiction include the Spanish prosecution of Chilean dictator Augusto Pinochet and the U.S. prosecution of Chuckie Taylor.[29] It has not been used explicitly in South Korea, but there have been several relevant cases. In 1983, South Korea claimed concurrent jurisdiction in prosecuting the hijacking of an airplane that landed on South Korean territory, even though the aircraft was registered in China and the nationality of the hijacker was Chinese. Although the court’s ruling did not explicitly invoke universal jurisdiction, it was suspected to be behind the court’s decision in claiming jurisdiction.[30] In recent years, South Korean courts have found Kim Jong-un to be personally liable for human rights and humanitarian law violations.[31] For example, in 2023, the Seoul Central District Court ordered North Korea and Kim Jong-un to pay 50 million Korean Won each to three former prisoners of war for their forced labor during captivity.[32] Although actually receiving this compensation may be difficult, it nevertheless points to the possibility of invoking universal jurisdiction in future proceedings.

 
Feasibility and Transferability

In theory, applying universal jurisdiction in South Korea can be grounded in its Act on Punishment of Crimes Under Jurisdiction of the International Criminal Court. Adopted in 2007, the purpose of the Act is to “punish crimes within the jurisdiction of the International Criminal Court and set the procedures for cooperation between the Republic of Korea and the International Criminal Court pursuant to the Rome Statute of the International Criminal Court.”[33]

Article 3 defines the scope of applying this Act:

• (1) This Act shall apply to any Korean national or foreigner who commits a crime provided for in this Act within the territory of the Republic of Korea.
• (2) This Act shall apply to any Korean national who commits a crime provided for in this Act outside the territory of the Republic of Korea.
• (3) This Act shall apply to any foreigner who commits a crime provided for in this Act on board a vessel or aircraft owned by Republic of Korea, outside the territory of the Republic of Korea.
• (4) This Act shall apply to any foreigner who commits a crime provided for in this Act against the Republic of Korea or its people outside the territory of the Republic of Korea.
• (5) This Act shall apply to any foreigner who commits the crime of genocide, etc. outside the territory of the Republic of Korea and stays in the territory of the Republic of Korea.

Article 2 also stipulates that “The term ‘crime of genocide, etc.’ means any crimes listed in Articles 8 through 14,” which includes crime of genocide, crimes against humanity, war crimes against persons, war crimes against property and rights, war crimes against humanitarian activities, war crimes using forbidden methods, and war crimes using forbidden weapons.[34] Therefore, South Korean courts can invoke this act to prosecute crimes against humanity in line with principles of universal jurisdiction, as long as the perpetrator can be located within South Korea’s borders.

On this note, given the post-Korean War partition of the Peninsula, there is also an interesting discussion as to what constitutes national sovereignty and territorial integrity for North and South Korea. South Korea’s constitution states that “[t]he territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.”[35] In reality, however, North Korea and South Korea each occupy half of the Peninsula, and they are equally recognized as member states of the UN. Regardless, South Korea’s constitution influences how laws such as the Act on Punishment of Crimes Under Jurisdiction of the International Criminal Court may be interpreted, especially with regard to the physical location of where crimes were committed and where perpetrators currently reside. Even so, cases can still arise from North Korean escapees who resettle in South Korea.


Risks and Complications

One major concern raised by legal experts is that if South Korean courts indeed invoke the universal jurisdiction approach, “it would require them implicitly to recognize the de facto existence of a North Korean state, putting it into direct conflict with the provisions in the South Korean Constitution explicitly barring such recognition of North Korean statehood.”[36] South Korea is a staunch friend and ally of the United States. South Korea also has to maintain balance in its relations with China. Since both the United States and China have a keen interest in maintaining stability on the Korean Peninsula, political risks may arise if South Korea unilaterally alters its policies towards North Korea.

Procedurally, criminal prosecutions in South Korea would require the physical presence of the defendant. Otherwise, the court would be unable to enforce any potential remedies that may result from criminal trials.[37] Lastly, as with any legal proceedings, the success of a prosecution would depend on “whether the prosecuting authorities can assemble sufficiently robust evidence to result in a conviction.”[38] This is especially challenging. Even the COI acknowledged the difficulty of gaining on-site access to North Korea or direct input from the government.[39]


Concluding Remarks

Despite these risks and challenges, universal jurisdiction should be seriously explored as a strategy for addressing human rights abuses in North Korea. In the process of pursuing transnational justice, universal jurisdiction should be seen as a means to an end, not as an end in itself. Fulfilling victim communities’ desire to bring perpetrators to justice is only a “symbolic first stage in addressing more restorative and community-centered considerations.”[40] In exploring the option of universal jurisdiction, scholars must keep in mind that “the agency of abuse survivors in planning for future mechanisms of redress” should not be overlooked or set aside.[41] It is imperative to not lose sight of the broader goal of transitional justice.

Valerie Xu is a recent Master’s graduate from a dual-degree program between Johns Hopkins University School of Advanced International Studies and KDI School of Public Policy and Management. Her passion for sustainable global development and human rights are the motivators behind her academic pursuits and career aspirations.

[1] This article is based on an essay that was originally submitted as an academic assignment at Johns Hopkins University in December 2023. It is published here with the instructor’s permission.
[2] United Nations Human Rights Council. Report of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, UN Doc, A/HRC/25/63, 2014, para 80.
[3] Ibid., 14.
[4] Patricia Goedde, “Human Rights Diffusion in North Korea: The Impact of Transnational Legal Mobilization,” Asian Journal of Law and Society 5, no. 1 (2018): 177. https://doi.org/10.1017/als.2017.20.
[5] Kyung-ok Do, “Report of the Group of Independent Experts on Accountability for Human Rights Violations in the DPRK: Implications and Future Challenges,” Korea Institute for National Unification, April 5, 2017, 3. https://repo.kinu.or.kr/bitstream/2015.oak/8432/1/0001478608.pdf.
[6] A/HRC/25/63, para 85.
[7] Courtney J. Fung, “Just Not in the Neighbourhood: China’s Views on the Application of the Responsibility to Protect in the DPRK,” The China Quarterly 246 (2021): 573. https://doi.org/10.1017/S0305741020000648.
[8] Ibid., 577.
[9] Patricia Goedde, “Human Rights Diffusion in North Korea: The Impact of Transnational Legal Mobilization,” Asian Journal of Law and Society 5, no. 1 (2018): 179. https://doi.org/10.1017/als.2017.20.
[10] A/HRC/25/63, para 87.
[11] Do, “Report of the Group of Independent Experts on Accountability for Human Rights Violations in the DPRK: Implications and Future Challenges,” 4.
[12] Ibid., 5.
[13] Rosemary Foot, “The Responsibility to Protect (R2P) and Its Evolution: Beijing’s Influence on Norm Creation in Humanitarian Areas,” St Antony’s International Review 6, no. 2 (2011): 49. http://www.jstor.org/stable/26226764.
[14] Andrew Garwood-Gowers, “China and the ‘Responsibility to Protect’: The Implications of the Libyan Intervention,” Asian Journal of International Law 2, no. 2 (2012): 384. https://doi.org/10.1017/S204425131200015X.
[15] A/HRC/25/63, para. 86.
[16] Fung, “Just Not in the Neighbourhood: China’s Views on the Application of the Responsibility to Protect in the DPRK,” 570.
[17] Boris Kondoch, “North Korea,” in The Oxford Handbook of the Responsibility to Protect, eds. Alex J. Bellamy and Tim Dunne (Oxford University Press, 2016), 830. https://doi.org/10.1093/oxfordhb/9780198753841.013.44
[18] Exec. Order No. 13722, 81 FR 14943 (March 15, 2016).
[19] Ramon Pacheco Pardo, “Pressure and Principles: The EU’s Human Rights Sanctions on North Korea,” 38 North, March 26, 2021. https://www.38north.org/2021/03/pressure-and-principles-the-eus-human-rights-sanctions-on-north-korea/.
[20] Buhm-Suk Baek, “Partially Right, Partially Wrong: Rethinking the Implementation of International Human Rights Law in Countries with Gross Human Rights Violations,” Pacific Focus, 33 no. 2 (2018): 353. https://doi.org/10.1111/pafo.12122.
[21] “North Korea: Workers’ Rights at the Kaesong Industrial Complex,” Human Rights Watch, October 2006. https://www.hrw.org/news/2006/10/03/north-korea-workers-rights-kaesong-industrial-complex
[22] United Nations Human Rights Council. Promoting accountability in the Democratic People’s Republic of Korea, UN Doc. A/HRC/52/64, para 17.
[23] A/HRC/55/63, para 23.
[24] “Universal Jurisdiction,” International Justice Resource Center. https://ijrcenter.org/cases-before-national-courts/domestic-exercise-of-universal-jurisdiction/.
[25] “Basic Facts on Universal Jurisdiction,” Human Rights Watch, October 19, 2009. https://www.hrw.org/news/2009/10/19/basic-facts-universal-jurisdiction.
[26] M. Cherif Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice,” Virginia Journal of International Law, 42 no. 1 (2001): 89. https://via.library.depaul.edu/lawfacpubs/606.
[27] Ibid., 96.
[28] Ernest A. Young, “Universal Jurisdiction, the Alien Tort Statute, and Transnational Public-Law Litigation After Kiobel,” Duke Law Journal 64 (2015): 1033. https://scholarship.law.duke.edu/faculty_scholarship/3244.
[29] “Universal Jurisdiction,” International Justice Resource Center.
[30] “Universal Jurisdiction in the Republic of Korea,” United Nations. https://www.un.org/en/ga/sixth/65/ScopeAppUniJuri_StatesComments/RepublicofKorea.pdf.
[31] Daniel Wertz, “Private Litigation against the North Korean Government: Overview and Policy Implications,” NCNK, August 2021. https://www.ncnk.org/resources/briefing-papers/all-briefing-papers/private-litigation-against-north-korean-government.
[32] “Seoul Court Again Orders N. Korea to Pay Compensation to Former POWs,” Yonhap News, May 8, 2023. https://en.yna.co.kr/view/AEN20230508005900315.
[33] “Act on Punishment of Crimes under Jurisdiction of The International Criminal Court,” Korea Legislation Research Institute & Korea Law Translation Center. https://elaw.klri.re.kr/eng_service/lawView.do?lang=ENG&hseq=16463.
[34] Ibid.
[35] Stephan Sonnenberg and Patricia Goedde, “Accountability for Human Rights Crimes in North Korea: Jurisdictional Dilemmas in South Korea.” Asian Perspective 47, no. 3 (2023): 522. https://doi.org/10.1353/apr.2023.a905236.
[36] Ibid., 527.
[37] Ibid., 531.
[38] Ibid., 521.
[39] Goedde, “Human Rights Diffusion in North Korea: The Impact of Transnational Legal Mobilization,” 186.
[40] Mark Findlay, “Activating a Victim Constituency in International Criminal Justice,” International Journal of Transitional Justice 3 no. 2 (2009): 193. https://doi.org/10.1093/ijtj/ijp008.
[41] Sarah A. Son, “Chasing Justice: Victim Engagement with Accountability for Human Rights Abuses in North Korea,” Asian Studies Review 44, no. 4 (2020): 623. https://doi.org/10.1080/10357823.2020.1734536.