Saturday, April 27, 2024
Many people in North Korea have been victims of torture in so-called prison camps. Victims experience forced labour and other sub-human treatments that amount to torture. The facts are that North Korea as a state is yet to ratify the relevant treaties or conventions, namely, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), the Convention for the Protection of All Persons from Enforced Disappearance (CED). And North Korea is yet to join the International Labour Organization (ILO). Does it mean that the government of North Korea is free to legalise torture in so-called prison camps?
There are various kinds of prison camps in North Korea. And the allegations, which the government of North Korea does not accept, are that the prisoners are kept at long-term ordinary prison camps (kyohwaso) and political prison camps (kwanliso).
According to HRNK, “North Korea has a complex system of unlawful detention and forced labor. The two large-scale facilities known as “prison camps” in English are termed kwan-li-so and kyo-hwa-so in Korean. (David Hawk, author of HRNK’s Hidden Gulag reports).
There are four known political prison camps and over twenty prison labor camps spread throughout North Korea. Kim II- sung, North Korea’s first leader, modeled the prison camps on the Soviet gulags, and over the past six decades, North Korea’s prison system has grown tremendously.”
In spite of the fact that the government of North Korea does not accept the allegations of torture in the prison camps, the UN Commission of Inquiry (COI) published its report in 2014 and found the truthfulness of the allegations. COI found the existence of the prison camps and also found that there were gross violations of human rights in these so-called prison camps.
According to paragraph No 60 of the report of the COI, “In the political prison camps of the Democratic People’s Republic of Korea, the inmate population has been gradually eliminated through deliberate starvation, forced labour, executions, torture, rape and the denial of reproductive rights enforced through punishment, forced abortion and infanticide. The commission estimates that hundreds of thousands of political prisoners have perished in these camps over the past five decades. The unspeakable atrocities that are being committed against inmates of the kwanliso political prison camps resemble the horrors of camps that totalitarian States established during the twentieth century.”
Paragraph No 77 of the report also stated that “persons detained in political and other prison camps, those who try to flee the State, Christians and others considered to introduce subversive influences are the primary targets of a systematic and widespread attack against all populations that are considered to pose a threat to the political system and leadership of the Democratic People’s Republic of Korea. This attack is embedded in the larger patterns of politically motivated human rights violations experienced by the general population, including the discriminatory system of classification of persons based on songbun.”
It must be noted that North Korea has ratified only five treaties or conventions. Two important conventions, namely, the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT), and the Convention for the Protection of All Persons from Enforced Disappearance (CED) have not been ratified by the government of North Korea.
In such a situation, the matters of torture and mistreatment committed in the North Korean prison camps are not within the scope of those two conventions or the mechanisms established thereunder. However, those matters come within the scope of the UN Charter-based mechanisms, namely, Working Groups or Special Rapporteurs established by the UN Human Rights Council.
It has been settled by the international courts that the prohibition of torture has already attained the norms of jus cogens. And it does mean the derogation from which is not permitted. Let me cite here two relevant cases namely, Prosecution v Furundzija (International Tribunal for former Yugoslavia, December 10, 1998) and Advisory Opinion OC-26/20 (Inter-American Court of Human Rights, IACtHR, November 9, 2020) where it was confirmed that the prohibition of torture had attained the norms of jus cogens.
I had the opportunity to submit the amicus curiae briefs before the Court (IACtHR) in Advisory Opinion OC-26/20 case. Jus cogens and obligations erga omnes were relevant in this particular case and I quote below the relevant paragraph of the decision of the Court (IACtHR):
“105. Jus cogens is presented as the legal expression of the international community as a whole, based on universal and superior values, which embodies basic standards that guarantee essential or fundamental human values related to life, human dignity, peace and security. The prohibition against acts of aggression, genocide, slavery and human trafficking, torture, racial discrimination and apartheid, crimes against humanity, as well as the right to self determination, together with the norms of international humanitarian law, have been recognized as norms of jus cogens, which protect fundamental rights and universal values without which society would not prosper, and therefore produces obligations erga omnes.”
Finally, I would like to answer this question — whether the government of North Korea is free to legalise torture in the so-called prison camps. In light of the legal position mentioned above, I would draw a conclusion saying that North Korea is not free to legalise torture in prison camps. Because, the prohibition of torture has evolved into a peremptory norm or jus cogens. It enjoys a higher rank in the international hierarchy or international normative order. The derogation from which, through domestic or national measures, is not permitted.
The writer is a Barrister-at-Law, human rights activist and an advocate at the Supreme Court of Bangladesh.
