I’ve finally finished reading the DLA Piper report, which calls on the U.N. Security Council to invoke Chapter VI, and then Chapter VII, against North Korea for the crime of failing to protect its population. As regular readers know, I’ve long placed the North Korean famine at the top of the list of its crimes against humanity, and now, for the first time, a published scholarly report is making that same accusation and tying it to specific provisions of international law. Starting at Page 89 of the report:
- Further compounding this problem, the government strictly controlled food distribution and banned private markets.734 The North Korean government further used its control over food distribution to reward those persons deemed favored by the regime and to deny food to the less privileged.735
Conclusion of Sub-Section on Food Policy and Famine
There can be no more fundamental responsibility of a sovereign than to ensure its citizens are adequately nourished. For over 50 years the North Korean government has failed to meet this universal humanitarian imperative. The circumstances that created the famine continue to exist; they are the same problems that have existed for decades. North Korea cannot biologically andecologically produce food in amounts sufficient to provide nutritious meals toits people and do so reliably every year, including having a reserve to weather natural disasters.
In starving and malnourishing large portions of its population ““ let alonehaving been complicit in the deaths of as many as one million, and possibly more, of its own citizens ““ the North Korean government is committing the following actions: (1) extermination; and (2) other inhumane acts.
It is important to recall that the definition of “extermination” under the Rome Statute includes inflicting life conditions, such as depriving access to food and medicine, calculated to bring about the destruction of part of a population.736 “Other inhumane acts” includes the “causing great suffering, or serious injury to body or to mental or physical health.737
The main question that remained open in my mind was whether the deaths of all those people were the result of deliberate political cleansing, a criminally reckless misallocation of resources, or at the very best, criminal negligence. As it turns out, the actor’s state of mind is not a required element to prove the charge:
The acts described in this report committed by the North Korean government ““ such as preventing access to 42 counties for food aid monitoring, limiting and often banning private markets, controlling food distribution, inhibiting the transparent free distribution of aid, and limiting the number of aid workers allowed in the country ““ are widespread and systematic actions that result in starving substantial segments of the population. Under customary international law relating to crimes against humanity “there is an evidentiary presumption that persons who commit acts or omissions do so intentionally, absent indications to the contrary.738
As a result, there is no requirement to “prove” that North Korea intends its people to starve; rather it is sufficient to prove that the government has taken widespread and systematic actions that lead to that outcome.
Not only do these acts clearly violate North Korea’s obligations under the ICESCR and CRC739, but its refusal to feed substantial segments of its own population constitutes crimes against humanity.