A/HRC/22/57
that since the national authorities are “unable or unwilling to press for such
accountability”,30 the international community could press for further accountability,
whether in terms of State responsibility and/or individual criminal responsibility. In 2011,
the Special Rapporteur reported, “the International Criminal Court began to examine
whether the sinking of Cheonan, a Republic of Korea warship hit by a torpedo allegedly
fired from a Democratic People‟s Republic of Korea submarine on 26 March 2010,
resulting in the death of 46 persons, and the shelling of Yeonpyeong Island on the 23
November 2010, resulting in the killing of two civilians and injuring many others, would
constitute war crimes under the jurisdiction of the court. The Court‟s consideration of the
two incidents opens questions of accountability for other alleged crimes committed by the
Democratic People‟s Republic of Korea, including the issue of abduction”.31
24.
Of the options available to address the issue of impunity and accountability, the
Special Rapporteur asked in 2010 “to what extent the International Criminal Court can be
accessed for this purpose, on the basis of individual criminal responsibility and interrelated
with the fact that the country in question is not a party to the Rome Statute of the
International Criminal Court”.32 In 2010, the Special Rapporteur noted that the options also
included “the possibility of the Security Council taking up the issue directly and of
establishing a Commission of Inquiry on crimes against humanity”.33 He also invited the
international community “to address impunity from different viewpoints, whether in terms
of State responsibility and/or criminal responsibility, and to enable the totality of the United
Nations system, especially the Security Council, and its affiliates, such as the International
Criminal Court, to take measures to prevent egregious violations, protect people from
victimization and provide effective redress”.34
25.
The Special Rapporteur is of the view that many, if not all, of the nine patterns of
violation, identified in this report may amount to crimes against humanity, committed as
part of systematic and/or widespread attacks against civilian populations, under Article 7,
paragraph 1, of the Rome Statute of the International Criminal Court, in particular,
subparagraphs (a) murder; (c) enslavement; (e) imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law; (f) torture;
(h) persecution against any identifiable group or collectivity on political and religious
grounds; (i) enforced disappearance of persons; and (k) other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or to mental or
physical health.
26.
The right to be free from torture is a non-derogable right under article 7 of the
International Covenant on Civil and Political Rights (ICCPR), to which the Democratic
People‟s Republic of Korea is a State party.
27.
Similarly, peremptory international law places, enforced disappearance on the same
legal footing as torture. The Special Rapporteur notes that as enforced disappearance may
constitute several different human rights violations such as freedom of movement; liberty
and security of person; freedom from torture or cruel, inhuman, or degrading treatment; or
even the right to life, the act contravenes several provisions of the ICCPR. He also notes
that enforced disappearances, including through the abduction of foreign nationals such as
30
31
32
33
34
10
A/HRC/13/47, para. 58.
A/HRC/16/58, para. 14. See also the International Criminal Court‟s Report on Preliminary
Examination Activities, 2012, paras. 64-74 (http://www.icc-cpi.int/NR/rdonlyres/C433C462-7C4E4358-8A72-8D99FD00E8CD/285209/OTP2012ReportonPreliminaryExaminations22Nov2012.pdf).
A/HRC/13/47, para. 59.
A/HRC/13/47, para. 58.
A/HRC/13/47, para. 89 (e).
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