To Catch a Rogue: Criminal Responsibility of Kim Jong Un
Before the International Criminal Court
Kim Jong Un, the third supreme leader of the Kim dynasty in North Korea, has continued the dictatorial rule over 25 million North Koreans since he came to power in 2012. Various human rights monitoring bodies have reported that human rights violations under Kim’s regime are widespread and grave. Therefore, to explore the notion of prosecuting Kim Jong Un before the International Criminal Court, this article delves into the government-oriented human rights abuses under Kim’s rule and seeks to determine whether these abuses constitute crimes against humanity, genocide, and war crimes, all of which are the violations of the Rome Statute of the International Criminal Court (ICC). First, this article studies the legal framework for establishing these crimes and applies facts available from credible sources to the law, thereby concluding that, if brought before the ICC, Kim Jong Un may be held criminally liable for the aforementioned violations of the Rome Statute of ICC. Finally, this article recommends that the United Nations Security Council refer this matter to the ICC or install a special tribunal for North Korea.
Gross human rights violations persist under the authoritarian regime of Kim Jong Un. On 21 March 2013, the United Nations Human Rights Council installed a Commission of Inquiry on the Human Rights Violations in North Korea. The Commission published a report on 7 February 2014 with the findings of “systematic, widespread and grave violations of human rights, including murder, torture, rape, forced abortions and more” in North Korea. The report states that the scale of the abuses demonstrates a state that does not have any parallel in the contemporary world.
In that vein, this article purports to shed light upon the scale of these state-operated human rights violations by demonstrating that they may constitute crimes against humanity, genocide, and war crimes, all of which are the violations of the Rome Statute, and that Kim Jong Un may be held criminally liable for them.
Section I discusses the legal framework for prosecution against Kim Jong Un. Section II studies the facts available regarding the human rights situations in North Korea and concludes that there is a reasonable ground for holding Kim criminally responsible for crimes against humanity, genocide, and war crimes. Section III subsequently provides recommendation that the UN Security Council judicially intervene in North Korea by referring Kim Jong Un to the ICC. Above all, this article aims at constructing an essential foundation for further investigation and prosecution of Kim Jong Un and his regime.
I. The Legal Framework for Prosecution Against Kim Jong Un in the ICC
In order to pursue any prosecution against Kim Jong Un, it is crucial to establish his individual criminal responsibility for crimes against humanity, genocide, and war crimes. For bringing a case to the ICC, the Rome Statute, the ICC Rules of Procedure and Evidence (hereinafter “Rules of Procedure and Evidence”), and the ICC Elements of Crimes (hereinafter “Elements of Crimes”) are the legal sources that are primarily considered. Therefore, this section focuses on these sources of law to establish the legal framework for prosecuting Kim Jong Un.
- Individual Criminal Responsibility
(1). Mens Rea and Actus Reus
The ICC requires that “mental elements” (mens rea) and “physical elements” (actus reus) be proven, in order to hold a person responsible for a crime. Specifically, Article 25 of the Rome Statute lists actions, which would permit the ICC to have jurisdiction over an individual and subsequently hold him or her liable for a crime, and outlines the mental state requirements that are necessary for criminal liability. Further defining the general mental elements, Article 30 stipulates that the physical elements shall be “committed with intent and knowledge.” Additionally, according to the general introduction to the Elements of Crimes, one can infer such intent and knowledge from relevant facts and circumstances.
(2). Superior Responsibility
The ICC may hold Kim Jong Un individually responsible for criminal activity carried out by his forces or subordinates. Pursuant to Article 28 of the Rome Statute, a military commander or a superior may be held responsible for having failed to exercise control over his or her forces or subordinates to prevent or repress their commission of a crime. As the Marshal(wonsu) of North Korea and the Supreme Commander of the Korean People’s Army, Kim Jong Un undeniably has absolute superior authority in North Korea. Additionally, Article 27 of the Rome Statute explicitly bars exempting a head of state from criminal liability based on his or her official capacity. In conformity with Article 27 of the Rome Statute, the International Criminal Tribunal for the former Yugoslavia (ICTY) indicted Slobodan Milošević, then president of Serbia in 1999. Hence, any immunity of an incumbent head of state has been denied, and there is an ample possibility of prosecuting Kim Jung Un.
- Other Elements and Procedural Rules Considered
Articles 6 to 8 of the Rome Statute define requirements that are necessary to establish one’s responsibility for crimes against humanity, genocide, and war crimes. Furthermore, the Elements of Crimes elaborates on the elements – generally broken into conduct, consequence, and circumstance elements – of each of these crimes that must be met for prosecution in the ICC.
The prosecutor of the ICC shall initiate an investigation, if he or she evaluates that the information made available provides a reasonable basis to believe that a crime within the jurisdiction of the ICC has been or is being committed. The accused must be proven guilty “beyond a reasonable doubt.” Additionally, under the principle of nullum crimen sine lege (“no crime without law”), the definition of a crime must be interpreted in favor of the one who is investigated, prosecuted or convicted.
II. Analysis of the Law and Application of the Facts
This section specifically discusses whether Kim Jong Un and his subordinates would be found guilty for crimes against humanity, genocide, and war crimes, if they were persecuted in the ICC. This section then delves into the legal requirements for these crimes and applies the facts within North Korea, thereby establishing individual liability for Kim Jong Un.
- Crimes Against Humanity
North Korea’s systematic human rights violations may meet the requirements to establish crimes against humanity. For instance, throughout a vast network of political penal-labor camps, roughly 80,000 to 120,000 inmates are constantly threatened by rampant murder, extermination, torture, rape and other sexual violence, and such, all of which constitute crimes against humanity, pursuant to Article 7 of the Rome Statute.
(1). Mens Rea and Actus Reus
According to the aforementioned Article 7, persecuting one for having committed crimes against humanity calls for proving the following two actus reus elements. First, the accused must have perpetrated at least one of the offenses specified in Article 7(1) of the Rome Statute. Second, the contextual element requires that such offenses have been committed “as part of a widespread or systematic attack directed against civilians.”
Article 7 of the Elements of Crimes elaborates on mens rea requirements that these two elements require. Specifically, the perpetrator must have the “intent to further an attack”, which he or she has been accused of having made and the “knowledge of a widespread or systematic attack against a civilian population.”
(2). Individual Criminal Responsibility
Even if an individual does not personally commit the underlying offenses, he or she shall take criminal responsibility for them, if that person “[o]rders, solicits or induces” their commission, per Article 25 of the Rome Statute. Therefore, since Kim Jong Un exerts total control over North Korea, it may not be unreasonable to contend that Kim had the intent to perpetrate the underlying offenses of crimes against humanity through others by ordering, soliciting, or inducing his forces or subordinates to commit such offenses.
(3). Superior Liability
In addition to Kim Jong Un’s individual criminal responsibility, he may be held criminally liable for the offenses committed by his forces or subordinates who are under his absolute control. Stated in Article 28 of the Rome Statute, the responsibility of a commander and other superiors becomes a question at issue, if a military commander or a superior “either knew or consciously disregarded” the information that the forces or the subordinates were committing or about to commit crimes enumerated in the Rome Statute.
To prosecute Kim Jong Un for superior responsibility, it needs be proven that Kim knew the commission of such crimes by his underlings, but failed to take measures necessitated either to “prevent or repress [the] commission” of such offenses or “submit the matter for investigation and prosecution.”
Given pervasive surveillance of the population, it is most unlikely that Kim does not have the knowledge of his forces or subordinates perpetrating human rights violations across the state. These offenses are government-operated at large, and it is presumable that as the master of a culture of surveillance, Kim is fully aware of their commission. Moreover, it is most likely that he instigated these crimes. Hence, there is a strong case for Kim Jong Un’s superior liability.
(4). Discussion of the Underlying Offenses that Establish Crimes Against Humanity
Crimes against humanity have a series of underlying offenses, as discussed below.
Per Article 7(2)(b) of the Rome Statute, extermination is defined as “the privation of access to food and medicine, calculated to bring about the destruction of part of a population.”
Arbitrary and unlawful killings have reportedly occurred in the prison camps. It has been discovered that the North Korean government has conducted experiments on children with disabilities and maintained a so-called Hospital 83 on an island near South Hamgyong Province, dedicated for that purpose. There, those with disabilities are manipulated for chemical and biological tests such as dissection of body parts. A lot of these experiments are conducted as part of North Korea’s development of biological and chemical weapons.
Additionally, human rights monitoring groups report that conditions in prison camps and detention facilities are extremely brutal and harsh, and systematic government-operated human rights violations occur on a daily basis. It is believed that deliberate starvation and deprivation of medicine are used as a means of total control and punishment in these camps, where incarceration is for life. As a result, it is estimated that approximately one million have died due to the deplorable conditions at these North Korean prison camps.
Given that a trial chamber for the International Criminal Tribunal for Rwanda (ICTR) held that the murder of 16 people is sufficient to constitute the crime of extermination, the mass killings that have taken place at North Korea’s prison camps adequately meet the requirements to constitute crimes against humanity by extermination.
Per Article 7(2)(c) of the Rome Statute, enslavement is defined as “the exercise of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.” The ICTY trial chamber elaborated on the factors that help construe the crime of enslavement as following:
[I]ndications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. … Further, indications of enslavement include: exploitation; the exaction of forced or compulsory labour or service, often without remuneration and often, though not necessarily, involving physical hardship; sex; prostitution; and human trafficking.
The North Korean population is subject to the government’s strict control of the right to freedom of movement and to freedom of choice. The government unilaterally chooses where citizens shall reside and provide labor and imposes their decision on them. Combined with the violation of the citizens’ rights to food, the government’s violation of the freedom of movement forces women and young girls to succumb to prostitution and sex trafficking.
Undoubtedly, the situations in the prison camps are much worse. Prisoners are forced to perform hard labor in order to benefit the North Korean authorities under highly cruel and harsh conditions. In that process, the prisoners are vulnerable to exploitation by the authorities physically, psychologically, and not to mention, sexually. Rape and other arbitrary cruelties by guards and fellow prisoners are widespread and nevertheless go unpunished.
These activities, which constitute the crime against humanity by enslavement, are widely practiced throughout the prison camps. Thus, it can be inferred that they are part of “a widespread and systematic attack against a civilian population” of which Kim Jong Un likely has knowledge.
Per Article 7(2)(e), torture is defined as “the international infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused, except that it does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.”
According to almost all of the former prisoner testimonies gathered by human rights monitoring bodies, the practice of torture is pervasive throughout the prison camps in North Korea. Since torture is systematically practiced, it certainly cannot be the work done by sadistic individuals alone. Rather, it demonstrates the government’s intent to punish, intimidate, and control prisoners, in order to eradicate those critical to the North Korean government or its Juche ideology.
Witnesses have testified that prison guards use brutal tactics such as motionless kneeling, burnings, skin piercings, water torture, and electric shock. These methods are more often than not fatal. Even if a prisoner survives at the end of the torture, he or she most likely develops infections from open wounds and, without proper medicine to cure them, ends up permanently disabled, or worse, faces painful death.
Hence, torture, which permeates throughout the prison camps, constitutes part of a widespread or systematic attack against civilians. Given Kim Jong Un’s absolute power over how the North Koreans are controlled, it is reasonable to believe that he is criminally responsible for the crime against humanity by torture that is widely practiced by his forces and subordinates throughout the prison camps.
Per Article 7(2)(g), persecution is defined as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”
The North Korean government has adopted the songbun system, which assigns every North Korean citizen to a class based on heredity and socio-political rank which determines all aspects of one’s life from employment to food ration to education. Under this classification system, all citizens are categorized into one of the following three classes: the ‘core (haeksim)’ class, the ‘wavering (dongyo)’ class, or the ‘hostile (choktae)’ class. This party-directed “caste system” is utilized to discriminate citizens based on their songbun over which the individual has no control. Subsequently, political and social persecution has been adopted to suffocate the forces that Pyongyang considers to be critical to the party state. Moreover, the North Korean government is notorious for having targeted Christians and systematically imprisoning, torturing and killing them, as it views them as agents of Western imperialism.
Such targeting based on one’s songbun or religion may constitute the crime against humanity by persecution, as it is conducted as part of a widespread or systematic attack against civilians of which Kim Jong Un has likely had knowledge.
Genocide is largely considered to be the ultimate crime in international law, and North Korea has reportedly committed systematic human rights violations that most likely have amounted to constitute the crime of genocide.
(1). Mens Rea and Actus Reus
1). Superior Liability
With regard to the mens rea requirement, Article 6 of the Rome Statute requires the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The ICTY trial chamber further elaborates on the special intent required to establish superior liability for genocide by stating that the superior “knew or had reason to know that their subordinates (1) were about to commit or had committed genocide and (2) that the subordinates possessed the requisite specific intent.”
Kim Jong Un has absolute control over the lives of 25 million North Korean people, from which can be inferred that the crime of genocide can occur only with his knowledge that his subordinates were perpetrating one. Hence, as the supreme leader of the party state, Kim is most likely to be held liable as a superior for the crime of genocide.
2). Definition of “National, Ethnical, Racial or Religious Group”
The ICTR trial chamber sheds light upon the meanings of “national, ethnical, racial or religious group,” which are required to establish the crime of genocide and yet not defined in the Rome Statute. According to Prosecutor v. Akayesu, a national group is a “collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties.” An ethnical group is “a group whose members share a common language or culture,” and a racial group is “based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors.” Lastly, a religious group is “one whose members share the same religion, denomination or mode of worship.”
Certainly, the situations in North Korea display the commission of genocide targeted at specific groups of people based on their ethnicity or religion. For example, babies of Chinese or other non-North Korean fathers are subject to infanticide, in order to keep them from contaminating “pure” Korean blood. Additionally, as discussed above, Christians are subject to harsh persecution and brutal killing, due to their faith in something other than Juche ideology.
3). Definition of “in whole or in part”
The aforementioned killings of the half-North Korean babies and the Christians are relatively small in scale, as opposed to the total population of human rights victims in North Korea. Therefore, it is critical to determine the threshold number of victims necessary to constitute the crime of genocide.
A series of tribunal decisions hold that the threshold number should be “substantial.” For example, the ICTY trial chamber stated that the intent to destroy “part of the group must concern a substantial part thereof, either numerically or qualitatively.” This holding regards the massacre of approximately 7,000 Bosniak (Bosnian Muslims) in Bosnia-Herzegovina in 1995, and the decision was that the number of victims was “substantial” with comparison to the Bosniak population concerned at the time.
As of now, it is estimated that roughly 50,000 to 70,000 are detained in the prison camps, where they are subject to brutal torture and murder, solely because of their faith in Christianity. Therefore, further investigation is called for in order to decide the raw number of the victims. Nevertheless, given the Bosniak precedent, it is highly likely that “in part” aspect of genocide is satisfied in the case of North Korea.
(2). Application of the Elements to the Facts
Per Article 6(a) of the Elements of Crimes, the crime of genocide by killing requires the following four elements:
- The perpetrator killed one or more persons.
- Such person or persons belonged to a particular national, ethnical, racial or religious group.
- The perpetrator intended to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
- The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
As discussed above, the first three elements are satisfied, and thus, this Article focuses on the fourth here. The infanticide of the half-North Korean babies and the killings of the Christians in the prison camps have taken place regularly to the extent that it could effect the destruction of the groups protected by the Rome Statute. Hence, the fourth element is also satisfied.
As such, facts establish that there is a reasonable ground to believe that Kim Jong Un, with absolute control over the party state, is criminally responsible for the crime of genocide.
- War Crimes
According to Article 8 of the Rome Statute, war crimes are defined as “grave breaches of the Geneva Conventions of 12 August 1949.” Notably, these “grave breaches” include compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement; and taking of hostages. That is, unlike crimes against humanity which only concern civilians, Article 8 of the Rome Statute encompasses the human rights violations against prisoners of war (hereinafter “POW”).
As of 2013, 516 South Korean POWs from the Korean War of 1950-1953 are alive and still detained in North Korea. Geneva Convention III discusses at length the protection of POWs. From Articles 21 to 130, Geneva Convention III outlines the necessary treatment of POWs by the detaining power, requiring everything from providing adequate food and proper living arranges to freedom of religion, reasonable payment for work performed, and even periodic visits from the representatives of their home country. Undoubtedly, murdering or endangering the health of a POW is considered a “grave breach of the Geneva Convention,” thereby constituting a war crime.
Given that the South Korean POWs are detained in the notorious prison camps, it is most likely that they are subject to the same horrible – or perhaps harsher – conditions as other detainees. In fact, according to the testimony of those POWs who have successfully escaped from North Korea, South Korean POWs have been put to extremely hard labor in mines for decades and brutally treated by the North Korean government. Hence, Kim Jong Un most likely holds individual liability as a commander and a superior who has failed to prevent the commission of the war crimes by those under his authority.
This Article is geared toward analyzing with legal precision how facts available regarding the human rights situations in North Korea may construct a “reasonable ground” for establishing that Kim Jong Un is criminally responsible for crimes against humanity, genocide, and war crimes.
As human rights abuses in North Korea remain unabated, international efforts are made to demand accountability for the violations. On June 23 last year, the United Nations opened its field office in Seoul in order to gather evidence and monitor ongoing abuses and crimes against humanity in North Korea. Moreover, on March 23 this year, the United Nations Human Rights Council (UNHRC) adopted a resolution on North Korea to create a group of experts with a task to find practical ways to hold human rights violators in North Korea to account.
With the recent turn of events in which Pyongyang recklessly furthers its nuclear tests and threatens global security, the usual supporters of Pyongyang such as Russia and China may be willing to intervene in the North Korean situation by helping render a UN Security Council decision to refer it to the ICC. The Security Council’s referral would serve as the strongest legal basis for the ICC’s jurisdiction over North Korea.
Therefore, until the Security Council renders such a decision or installs a special tribunal for North Korea, the spotlight must be kept on Pyongyang’s ongoing human rights violations and evidence of its crimes must continue to be collected.
IV. Conclusion: Looking Forward
This Article analyzes facts provided by credible sources to constitute crimes against humanity, genocide, and war crimes committed by Kim Jong Un and argues that Kim, if prosecuted before the ICC, would be criminally liable for these violations of the Rome Statute. Additionally, this Article recommends that the UN Security Council refer the situation in North Korea to the ICC or set up a special tribunal in North Korea.
Kim Jong Un is in absolute control of the party state, thereby putting himself at the top of every governmental function in North Korea. Hundreds of thousands of North Koreans are detained in the prison camps without due process, where they are subject to crimes against humanity by extermination, enslavement, torture, and persecution. Women and young girls are especially vulnerable to trafficking and sexual exploitation. After all, since 1 July 2002 when the Rome Statute took effect, approximately 80,000 North Koreans are assumed to have died, due to the systematic, widespread and grave violations of human rights by Pyongyang in the forms of the crime against humanity, genocide, and war crime.
Undoubtedly, issuing arrest warrants against Kim Jong Un would be a grave challenge. However, international legal efforts to prosecute him should not be deterred out of political concerns that Beijing and Moscow will not cooperate. Kim and his cadre shall be put on notice that their human rights violations are being watched and that they will one day face justice.
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 Rome Statute of the International Criminal Court, art. 25, U.N. Doc. A/CONF.183/9 (July 17, 1998).
 Krzan, Bartłomiej. (Ed.), Prosecuting International Crimes: A Multidisciplinary Approach. Boston, MA: Brill, (2016), at 72
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 Id. art. 66.
 Id. art. 22 (2).
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 Michael Kirby, Recalcitrant States and International Law: The Role of the UN Commission of Inquiry on Human Rights Violations in the Democratic People’s Republic of Korea, 37 U. Pa. J. Int’l L. 229, 254 (2015).
 Id. at 258.
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 Prosecutor v. Blagojevic & Jokic, Case No. IT-02-60-T, Judgment, para. 686 (Jan. 17, 2005).
 Id. paras. 513-15.
 Prosecutor v. Akayesu, supra note 15, para. 512.
 Kirby, supra note 17, at 4.
 Prosecutor v. Krstic, Case No. IT-98-33-T, Judgment, para. 634 (Aug. 2, 2001).
 Howe, Brendan M. (2014). Post-Conflict Development in East Asia. New York, NY: Routledge, at 40.
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 Ministry of Unification, 2014 White Paper on Korean Unification (Feb. 2013), at 127, http://eng.unikorea.go.kr/content.do?cmsid=1819.
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 Grace M. Kang, A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes, 38 Colum. Hum. Rts. L. Rev. 51, 110 (2006).